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

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, between the date hereof and the Closing, the Company shall: (i) conduct the Business only in the Ordinary Course of Business; (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Section 8.2(a) of the Seller Disclosure Letter, (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoPurchaser, between Seller shall, solely as relates to the date hereof Business, and the Closing, the Company shallshall cause Subsidiary to: (i) conduct the Business and the business of Subsidiary only in the Ordinary Course of Business;; and (ii) use its commercially reasonable efforts Commercially Reasonable Efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of Seller (as they relate to the Company Business or the Purchased Assets) and Subsidiary and (B) preserve the present relationships with Persons having business dealings customers and suppliers of Seller (as they relate to the Business or the Purchased Assets) and Subsidiary. (b) Except (i) as set forth on Schedule 8.2(b) of the Seller Disclosure Letter, (ii) as required by applicable Law, (iii) as otherwise contemplated by this Agreement or (iv) with the Company prior written consent of Purchaser, Seller shall not, solely as relates to the Purchased Assets, and shall not permit Subsidiary to: (including customers and suppliers)i) subject any of the Buisness or the Purchased Assets or any of the assets of Subsidiary, to any Lien, except for Permitted Exceptions, or subject the Purchased Shares to any Lien; (iiiii) maintain (A) all of the acquire assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in outside the Ordinary Course of Business, Business from any other Person (B) continue except pursuant to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet an existing Agreement or inventory in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any portion of the Business or the Purchased Assets (except for fair consideration pursuant to an existing Agreement or inventory in the Ordinary Course of BusinessBusiness or for the purpose of disposing of obsolete or worthless assets) in each case, with an aggregate value in excess of the CompanyOne Hundred Thousand Dollars ($100,000); (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (viiii) cancel or compromise any debt or claim, claim or waive or release any material right of the Company Subsidiary or Seller that constitutes a Purchased Asset except in the Ordinary Course of Business; (viiiv) merge or consolidate with any other Person, except for any such transactions among Seller’s wholly-owned subsidiaries, or restructure, reorganize or completely or partially liquidate or otherwise enter intointo any agreements or arrangements imposing material changes or restrictions on its assets, modify operations or terminate businesses; (v) declare, set aside, make or pay any labor dividend or collective bargaining agreement orother distribution, through negotiation payable in cash, stock, property or otherwise, make any commitment or incur any Liability to any labor organization with respect to the Purchased Shares; (vi) issue (other than on exercise of options of Seller or rights of Seller set forth in the Seller Disclosure Letter), sell, pledge, dispose of, grant, transfer, encumber, or authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any Employeeshares of its or Subsidiary’s capital stock, or securities or rights convertible or exchangeable into or exercisable for any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or such convertible or exchangeable securities, including any options of Seller or rights of Seller; (vii) reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of Subsidiary’s capital stock or securities convertible or exchangeable into or exercisable for any shares of Subsidiary’s capital stock; (viii) introduce adopt or propose any change in its articles of association or other applicable governing instruments of Seller or Subsidiary that would adversely affect the Business or the Purchased Assets or Seller’s ability to perform its obligations under this Agreement; (ix) make any material Tax election, make any change in any method of accounting for Tax purposes or make any application with any Governmental Body or seek any Tax ruling from a Governmental Body, if there is a risk that such ruling may result in any terms, restrictions, liabilities or obligations being imposed on the Business or the Purchased Assets; (x) incur any Indebtedness for borrowed money or guarantee such Indebtedness of another Person, or issue or sell any debt securities or warrants or other rights to acquire any of its or Subsidiary’s debt securities, except for (A) Indebtedness for borrowed money incurred in the Ordinary Course of Business consistent with past practices (x) not to exceed One Hundred Thousand Dollars ($100,000) in the aggregate or (y) in replacement of existing Indebtedness for borrowed money on terms substantially consistent with or more beneficial than the indebtedness being replaced, or (B) guarantees by Seller of Indebtedness of its wholly-owned subsidiaries incurred in compliance with this Section 8.2 or (C) interest rate swaps on customary commercial terms consistent with past practice and in compliance with its risk management policies in effect on the date of this Agreement and not to exceed One Hundred Thousand Dollars ($100,000) of notional debt in the aggregate; (xi) make any loans, advances or capital contributions to or investments in any Person (other than between itself and any of its direct or indirect wholly-owned Subsidiaries); (xii) modify, other than in an immaterial manner, any policy or procedure with respect to the operation collection of receivables or payment of payables directly related to the BusinessBuisness or the Purchased Assets; (xiii) pay, including discharge or satisfy before it is due any material change claim or Liability directly related to the Buisness or the Purchased Assets or fail to pay any such item in a timely manner directly related to the typesBusiness or the Purchased Assets, naturein each case except in accordance with the Ordinary Course of Business; (xiv) make any changes with respect to accounting policies or procedures that adversely affects the Buisness or the Purchased Assets, composition or quality of products or services, or, other than except as required by changes in applicable generally accepted accounting principles; (xv) except in the Ordinary Course of Business, make amend, waive, surrender or terminate or agree to the amendment, waiver, surrender or termination of any change in product specifications Seller Material Agreement or prices any material Permit that adversely affects the Business or terms of distributions of such productsthe Purchased Assets; (ixxvi) enter into except in the Ordinary Course of Business, exercise any transaction right or enter into, modify option under or extend or renew any Contract which by reason Seller Material Agreement that adversely affects the Business or the Purchased Assets; (xvii) except in the Ordinary Course of Business enter into or engage in any transaction with its size Affiliates that adversely affects the Business or otherwise is not the Purchased Assets; (xviii) pay any management charge to Seller or any entity other than Subsidiary; (xix) take any action that would reasonably be expected to result in a material increase in Tax liability (or a corresponding loss of Tax attributes) relating to the Business or the Purchased Assets other than in the Ordinary Course of Business; (xxx) enter into any Contractagree, understanding commit or commitment that restrains, restricts, limits offer (in writing or impedes the ability of the Business, or the ability of Newco or Purchaser, otherwise) to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties actions described in clauses “(i)” through “(xix)” of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanySection 8.2(b).

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoParent, between the date hereof and the Closing, the Company shall: (i) conduct the Business only in the Ordinary Course of Business; (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoParent, the Company shall not: (i) (A) increase the salary or other compensation of any director manager or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or directormanager, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directorsmanagers, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors managers or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.54.6; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; or (E) pay or make any dividend or distribution of cash or other property with respect to the Company Units or other equity securities of the Company; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Company Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Company Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in by Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contractcontract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco Parent or PurchaserMergerLLC, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts provided therein as are in effect on the date of this Agreement and upon such other terms as are in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Seller shall use their best efforts, and shall cause the Company shallto: (i) conduct Conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice; (ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company; (iii) maintain Maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply Comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Seller shall not, and shall cause the Company not to: (i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company; (ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company; (iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company; (iv) Amend the certificate of incorporation or by-laws of the Company; (A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company; (iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables; (iiivii) subject Subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company; (ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyCompany except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser; (vix) Cancel or compromise any debt or claim or waive or release any material right of the Company except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice; (x) Enter into any commitment for capital expenditures or the purchase of assets out of the ordinary course in excess of $5,000; (xi) Permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice; (xii) Permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Seller; or (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 6.2, (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement Agreement, (iv) for any transactions among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, or (v) with the prior written consent of Newco, between the date hereof and the ClosingParent, the Company shall: (i) conduct the Business only in the Ordinary Course of Business; (ii) , and shall cause its Subsidiaries to, use its commercially reasonable efforts to (Ax) preserve conduct the present business operations, organization (including officers and Employees) and goodwill respective businesses of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) its Subsidiaries in all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company material respects in the Ordinary Course of Business, (By) continue to collect accounts receivable preserve their relationships, in all material respects, with customers, suppliers, distributors, licensors, licensees, lessors and pay accounts payable others Persons having business dealings with the Company or its Subsidiaries and other Liabilities set forth on the Balance Sheet (z) make capital expenditures in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply in accordance with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the CompanyCapEx Budget. (b) Without limiting the generality of the foregoing, except (i) as set forth on Schedule 6.2, (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement Agreement, (iv) for any transactions among the Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, or (v) with the prior written consent of NewcoParent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any of its Subsidiaries to: (i) issue or sell, or authorize the issuance or sale of, any shares of capital stock or other equity interests of the Company or any of its Subsidiaries (other than any issuances pursuant to Options and RSUs outstanding on the date hereof under the Equity Incentive Plan or the Exchangeable Notes), or any securities convertible into, or options with respect to, warrants to purchase, or rights to subscribe for, any shares of capital stock or other equity interests of the Company or any of its Subsidiaries; (ii) purchase or redeem any shares of capital stock or other equity interests of the Company or its Subsidiaries, or effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company or any of its Subsidiaries; (iii) amend in any material respect the certificate of incorporation or bylaws or comparable organizational documents of the Company or any of its Subsidiaries; (iv) (A) grant any increase in the base salaries or wages payable or bonus opportunities or employee benefits provided to any Company Employees or current directors or individual independent contractors, except for base salary or wage increases for Company Employees (other compensation of any director than directors or Employee of the Company except for normal year-end increases executive officers) (x) in the Ordinary Course of Business, (By) grant any bonusas required under contractual arrangements in effect as of the date of this Agreement, benefit or other direct (z) in the Ordinary Course of Business in connection with the progression or indirect compensation to any promotion of a Company Employee that does not have a title of “Senior Vice President” or directorhigher or otherwise does not have a total annual base salary in excess of $275,000 (for such Company Employees based in the United States or China) or €275,000 (for such Company Employees based in Europe)); provided, that in the case of clause (x), such increases do not exceed, in the aggregate, on a Company-wide basis, three percent (3%) of the aggregate Company expense for base salaries and wages as of the date hereof, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (DB) enter into any employment, deferred compensation, stay bonus, severance, special payretention, consulting, non-competition change of control or similar agreement or arrangement with any Company Employees or current directors or officers of the Company individual independent contractors, (C) establish, adopt, enter into, amend or amend terminate any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash Collective Agreement or other property with respect collective bargaining agreement or Company Benefit Plan, except for amendments to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred Company Benefit Plans in the Ordinary Course of Business since that (x) are entered into in connection with open enrollment for the Balance Sheet Datecurrent plan year or (y) do not materially increase the cost to the Company, in the aggregate, of maintaining such Company Benefit Plan, (D) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any of the Company Employees or current directors or individual independent contractors, (zE) terminate the Indebtedness set forth on employment of any Company Disclosure Schedule 4.5; Employee with the title of “Senior Vice President” or higher and having a total annual base salary in excess of $225,000 (Bfor such Company Employees based in the United States or China) or €300,000 (for such Company Employees based in Europe), other than for cause (determined in the Company’s sole discretion), or carry out any mass redundancy (Massenentlassung), in each case, except as required by applicable Law or under any Company Benefit Plan in effect as of the date of this Agreement; (v) hire any new employees, unless such hiring is in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase Business consistent with past practice with respect to employees with an annual base salary not to exceed $225,000 (for potential new employees based in the United States or satisfy any Indebtedness issued China) or guaranteed by the Company; €300,000 (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personfor potential new employees based in Europe); (iiivi) subject to any Lien any of the properties (including the Real Property) or otherwise encumber orassets (whether tangible or intangible) of the Company or any of its Subsidiaries, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (ivvii) become legally committed to make any capital expenditures, except (A) for any capital expenditures pursuant to projects for which work has already been commenced or committed or is otherwise contemplated in the CapEx Budget, (B) for any capital expenditures that are less than $1,000,000, individually, or that are in the aggregate, less than $5,000,000, when aggregated with all other capital expenditures pursuant to this clause (B), or (C) for any capital expenditure related to a Force Majeure; (viii) acquire the equity securities or substantially all of the assets of any material properties entity (whether directly or assets indirectly and whether by merger, acquisition of securities or assets, reorganization, recapitalization or otherwise); (ix) (A) incur, create, refinance, replace, cancel, prepay, guarantee, or assume any indebtedness (including guarantees) in an aggregate amount in excess of $5,000,000 in the aggregate or (B) enter into any hedging, swap or similar arrangements, in each case, outside of the Ordinary Course of Business; (x) sell, assign, license, transfer, convey, lease lease, sublease or otherwise dispose of any of material properties (including the Purchased Assets (except for fair consideration in the Ordinary Course of BusinessReal Property) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right assets of the Company or any of its Subsidiaries except in the Ordinary Course of Business; (viixi) enter into(A) make or rescind any material election relating to Taxes, modify (B) settle or terminate compromise any labor material Tax liability, (C) adopt or collective bargaining agreement orchange any material method of Tax accounting, through negotiation or otherwise(D) materially amend any Tax Return, make any commitment or incur any Liability to any labor organization with respect to any Employeein each case other than in the Ordinary Course of Business; (viiixii) introduce any material change with respect to the operation of the Business, including make any material change in the typesCompany’s or its Subsidiaries’ respective accounting methods, natureexcept as required by GAAP; (xiii) enter into or amend any Affiliate Contracts, composition or quality enter into any transactions with Affiliates, except in the Ordinary Course of products Business, that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act; (xiv) modify, amend or servicesterminate, orwaive or assign any material rights under any Material Contract or Lease, or enter into any new Contract that would be a Material Contract or Lease, in each case other than in the Ordinary Course of Business; (xv) adversely modify, amend, or terminate any material Permits, including Environmental Permits, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ixxvi) enter into adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization or major changes of business operation; (xvii) set aside, make or pay any transaction dividend or enter intoother distribution, modify payable in cash, stock, property or renew otherwise, with respect to any Contract which by reason of its size the Company’s capital stock; (xviii) cancel, compromise or otherwise is not settle any Proceeding, except (A) in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permitwhere the amount paid in settlement or compromise is less than $1,000,000 individually or $5,000,000 in the aggregate; (xiixix) settle waive in writing any material right of the Company or any of its Subsidiaries, including any material write-off or compromise any pending or threatened Legal Proceeding or any claim or claims forof accounts receivable, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementBusiness; or (xviixx) authorize any of, or commit or agree to do do, anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto: (i) conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice; (ii) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company; (iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to: (i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company; (ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company; (iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company; (iv) amend the certificate of incorporation or by-laws of the Company; (A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iiivi) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company; (ivvii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the Company except, with respect to the items listed on Schedule 5.2(b)(vii) hereto, as previously consented to by the Purchaser; (viii) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business; (ix) enter into any commitment for capital expenditures of the Company in excess of $25,000 for any individual commitment and $100,000 for all commitments in the aggregate; (x) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company; (vxi) except as provided permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in Section 6.6 hereof, the ordinary course of business consistent with past practice; (xii) permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSeller; or (xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.

Conduct of the Business Pending the Closing. From the date hereof through and including the Closing Date, except (a1) Except as set forth on Schedule 4.1, (2) as required by applicable Law (for which, to the extent practicable, Sellers shall provide prior notice to Buyer), (3) as otherwise expressly provided specifically contemplated by this Agreement Agreement, (4) with respect to the transfer of any Elsevier Retained Assets to any Seller or Affiliate thereof or (5) with the prior written consent of NewcoBuyer, between the date hereof and the Closing, the Company shall: Sellers (ia) shall conduct the Business Business, and shall cause each MDL Group Company to conduct the Business, only in the Ordinary Course ordinary course of Business; (ii) business, shall use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Business in all material respects, preserve the condition and (B) integrity of the Additional Assets in all material respects and preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); , including the Top Customers and Top Suppliers (iii) maintain (A) all to the extent such Top Suppliers are customers or suppliers, respectively, of the assets and properties of, or used by, Business as of the Company consistent with past practicedate hereof), and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) transfer, issue, sell, encumber or dispose of any equity interests of any MDL Group Company or grant options, warrants, calls or other rights to purchase or otherwise acquire equity interests or other securities of or any stock appreciation, phantom stock or other similar right with respect to any MDL Group Company; (ii) except as contemplated by Section 4.12, effect any recapitalization, reclassification or any other change in the capitalization of any MDL Group Company; (iii) amend the organizational documents of any MDL Group Company; (iv) except after consultation with Buyer, hire any new employees into any MDL Group Company or, except in the ordinary course of business, (A) increase the salary annual level of compensation, bonus or any other compensation benefits payable or to become payable by any MDL Group Company to any of any director its directors or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, Employees; (B) grant or increase any bonus, severance, termination pay, benefit or other direct or indirect compensation to any Employee director or director, Employee; or (C) increase the coverage enter into, establish, amend or benefits available under terminate any (employment, consulting, retention, change of control, labor or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensationcollective bargaining, bonus or other incentive compensation, insuranceprofit sharing, pension health or welfare, stock option or other employee benefit plan equity, pension, retirement, vacation, severance or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement agreement, or any other plan, agreement, program, policy or arrangement with for the benefit of Employees that would constitute an Employee Benefit Plan, to which any directors MDL Group Company would be a party or officers of otherwise would have any liability or potential liability except to the Company (or amend extent any such agreement) to which the Company action is a party; or (E) pay or make any dividend or distribution of cash or other property taken with respect to the units or other equity interests similarly situated employees of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected Related Persons who participate in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Companyan Employee Benefit Plan; (v) except make any material change in any method of accounting or accounting practice, other than in accordance with the Seller Accounting Principles or as provided in Section 6.6 hereof, required by applicable Law; (vi) permit any MDL Group Company to enter into or agree to enter into any merger or consolidation with any Personcorporation or other entity, and not engage in or acquire any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; other person (vi) cancel whether by merger, stock purchase, asset purchase or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Businessotherwise); (vii) enter into, modify into any contract or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to the Business, the Assets or the Additional Assets not in the ordinary course of business or create or permit to be created any EmployeeEncumbrance with respect to the Business, the Assets or the Additional Assets, other than Permitted Encumbrances; (viii) introduce sell or otherwise dispose of any material change with respect to the operation portion of the Business, including the Assets or the Additional Assets or make any material change commitment to do so, not in the types, nature, composition or quality ordinary course of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsbusiness; (ix) enter into any transaction contract or enter intocommitment which (i) imposes any material restriction on the ability of any MDL Group Company to compete in any business or activity within a certain geographic area, modify or renew pursuant to which any Contract benefit or right is required to be given or lost as a result of so competing, (ii) which by reason grants any material exclusive license, supply or distribution agreement or other exclusive rights, (iii) which grants any material “most favored nation”, rights of first refusal, rights of first negotiation or similar rights with respect to any product, service or Intellectual Property Right, (iv) requires the purchase of all or substantially all or a given portion of the Business’ requirements from a given third party which is material to the Business, or (v) would have any of the foregoing effects on Buyer or any of its size or otherwise is not in Affiliates after the Ordinary Course of BusinessClosing; (x) enter into incur, assume, guarantee or extend any ContractIndebtedness, understanding or commitment that restrains, restricts, limits or impedes except in the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line ordinary course of business in consistent with past practice or which will be reflected as an Intercompany Balance or any geographic area debt owed to any Seller or solicit the employment of any personstheir Affiliates which will be eliminated at Closing; (xi) terminate, amend, restate, supplement create or waive suffer to incur any rights under Encumbrance on any (A) Material Contract, Real Property Lease, Personal Property Lease Asset or Intellectual Property License, any Additional Asset other than in the Ordinary Course of Business or (B) PermitPermitted Encumbrances; (xii) settle except as contemplated by Section 4.12, lend money to any person (other than routine travel advances made to employees in the ordinary course of business), or compromise incur or guarantee any pending or threatened Legal Proceeding indebtedness for borrowed money or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000long-term indebtedness; (xiii) change enter into or modify its creditbecome bound by, collection or payment policiespermit any of the assets owned or used by the Business to become bound by, procedures any Material Contract, or practicesamend or terminate, including acceleration or waive or exercise any material right or remedy under, any Material Contract except renewals of collections or receivables (whether or not Material Contracts with Top Customers and Top Suppliers made in the ordinary course of business consistent with past due) or fail to pay or delay payment of payables or other liabilitiespractice; (xiv) take any action which would adversely affect fail to maintain adequate insurance coverage with respect to the ability of Business and the parties to consummate the transactions contemplated by this AgreementAdditional Assets at levels consistent with past practice; (xv) amend settle, or offer or propose to settle, any material litigation, investigation, arbitration, proceeding or other claim involving or against the operating agreement of the CompanyBusiness; (xvi) agree make, amend or change any Tax election, change an annual accounting period, adopt or change any accounting method, make a request for a tax ruling or surrender any right to materially increase Liabilities from claim a refund of Taxes to any of the amounts set forth on MDL Group Companies, file any amended Tax Return or any amendment to any previously filed Tax returns (which may adversely affect any of Buyer, the Balance Sheet except in MDL Group Companies or any of their respective Affiliates for any period ending after the Ordinary Course Closing Date), or enter into any closing agreement or settle or compromise any Tax liability, claim or assessment (which may adversely affect any of Business under loan Buyer, the MDL Group Companies or credit agreements or arrangements up to any of their Affiliates for any period ending after the maximum amounts and other terms as in effect on the date of this AgreementClosing Date); or (xvii) agree enter into any contract or letter of intent to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company4.1.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (I) as set forth on Schedule 7.2(a), (II) as required by applicable Law, (III) as otherwise expressly provided contemplated by this Agreement or (IV) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company shall, and shall cause the Subsidiaries to: (i) conduct the Business respective businesses of the Company and the Subsidiaries only in the Ordinary Course of Business;; and (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the CompanySubsidiaries. (b) Without limiting the generality of the foregoingExcept (I) as set forth on Schedule 7.2(b), except (II) as required by applicable Law, (III) as otherwise expressly provided contemplated by this Agreement or (IV) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall not, and shall not permit the Subsidiaries to: (i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of the Subsidiaries; (ii) issue or sell any shares of capital stock or other securities of the Company or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of the Subsidiaries; (iii) effect any recapitalization, reclassification or like change in the capitalization of the Company or any of the Subsidiaries; (iv) amend the certificate of incorporation or by-laws of the Company or any of the Subsidiaries; (v) (A) materially increase the salary or other annual level of compensation of any director or Employee executive officer of the Company except for normal year-end increases in or any of the Ordinary Course of BusinessSubsidiaries, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee director or directorexecutive officer, (C) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives employees of the Company or any of the Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or any of the Subsidiaries is a party; party or (E) pay or make involving any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the Company; (ii) (A) createCompany or any of the Subsidiaries, incurexcept, assumein each case, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed as required by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonCompany Benefit Plans; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (ivvi) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets of the Company or any of the Subsidiaries (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business) Business or for the purpose of the Companydisposing of obsolete or worthless assets); (vvii) except as provided other than in Section 6.6 hereofthe Ordinary Course of Business, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any material debt or claim, claim or waive or release any material right of the Company except in or any of the Ordinary Course of BusinessSubsidiaries; (viiviii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation negotiations or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsorganizations; (ix) enter into or agree to enter into any transaction merger or enter intoconsolidation with any corporation or other entity, modify or renew acquire the securities of any Contract which by reason of its size or otherwise is not in the Ordinary Course of Businessother Person; (x) enter into or modify any Contract, understanding Contract with any Stockholder or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment Affiliate of any personsStockholder; (xi) terminateexcept to the extent required by Law, amendmake or rescind any material election relating to Taxes or settle or compromise any claim, restateinvestigation, supplement audit or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course controversy relating to a material amount of Business or (B) PermitTaxes; (xii) settle except to the extent required by Law or compromise GAAP, make any pending material change to any of its methods of accounting or threatened Legal Proceeding methods of reporting revenue and expenses or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000accounting practices; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take incur any action Liability which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of will be categorized as a Noncurrent Liability on the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement’s balance sheet; or (xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company7.2(b).

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by The Seller covenants and agrees that between the date of this Agreement and the Closing, unless the Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld), (i) the business of the Seller and its Subsidiaries shall be conducted only in, and the Seller and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, (ii) the Seller and its Subsidiaries shall use reasonable best efforts to preserve intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Seller and its Subsidiaries with customers, suppliers and other persons with which the Seller or its Subsidiaries has business relations, and (iii) the Seller and its Subsidiaries will comply with all applicable Laws and regulations wherever its business is conducted, including, without limitation, the timely filing of all reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act. Without limiting the foregoing, neither the Seller nor any of its Subsidiaries shall, except in the ordinary course of business consistent with past practice as of December 31, 1999, (i) materially reduce the expenses of the Seller or its Subsidiaries relating to sales or customer service or support, (ii) materially discount the price or materially alter the terms of any of the Seller's or its Subsidiaries' products or services, (iii) reduce or discount any accounts receivable of the Seller or any Subsidiary to accelerate collection of such accounts receivable or sell or factor any accounts receivable of the Seller or any Subsidiary, or (iv) manage the accounts payable of the Seller or any Subsidiary in a manner inconsistent with the Seller's past practice as of December 31, 1999. (b) The Seller covenants and agrees that between the date of this Agreement and the Closing the Seller shall not, nor shall the Seller permit any of its Subsidiaries, without the prior written consent of Newcothe Purchaser, between the date hereof and the Closing, the Company shall: to (i) conduct declare or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its capital stock, except for dividends by a wholly owned Subsidiary of the Business only in Seller to the Ordinary Course Seller or another wholly owned Subsidiary of Business; the Seller, (ii) use split, combine or reclassify any of its commercially reasonable efforts to (A) preserve capital stock or issue or authorize or propose the present business operationsissuance of any other securities in respect of, organization (including officers and Employees) and goodwill in lieu of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); or in substitution for shares of its capital stock; (iii) maintain repurchase or otherwise acquire any shares of its capital stock; (Aiv) all of issue, deliver or sell, or authorize or propose the assets and properties issuance, delivery or sale of, any shares of its capital stock or used byany securities convertible into any such shares of its capital stock, or any rights, warrants or options to acquire any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other than the Company consistent with past practice, and issuance of shares of Seller Common Stock upon (Bx) insurance upon all the exercise of the assets and properties Seller Options outstanding as of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; , (ivy) (A) maintain the books, accounts and records exercise of warrants outstanding as of the Company date of this Agreement or (z) the issuance of options to purchase Seller Common Stock described in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations Section 3.7 of the Company; Seller Disclosure Letter (the allocation of which is subject to the prior approval of the Purchaser) or (v) comply with the capital expenditure plan take any action that would, or could reasonably be expected to, result in any of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times conditions set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the CompanyArticle VI not being satisfied. (bc) Without limiting The Seller covenants and agrees that between the generality date of the foregoing, except as otherwise expressly provided by this Agreement or with and the Closing the Seller shall not, nor shall the Seller permit any of its Subsidiaries to, without the prior written consent of Newcothe Purchaser, which consent shall not be unreasonably withheld (such response shall be made within five (5) business days of receipt by the Company Purchaser of notice of such request (or two (2) business days in the case of clauses (xvii), (xix) and (xx) below), otherwise consent shall not: be deemed to have been given) (i) amend its articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) create, assume or incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) increase the salary borrowings under existing lines of credit (or other compensation under any refinancing of any director such existing lines) or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonusindebtedness owing to, benefit or other direct guaranties of indebtedness owing to, the Seller or indirect compensation to any Employee or director, (C) increase guarantees, loans or advances to employees less than $5,000 to an individual employee and $20,000 in the coverage aggregate with respect to business travel expenses in the ordinary course of business consistent with past practice; (iii) accelerate the timing of payments of any outstanding indebtedness for borrowed money; (iv) make any loans or benefits available under advances to any other person other than loans or advances between any Subsidiaries of the Seller or between the Seller and any of its Subsidiaries (other than guarantees, loans or create any newadvances to employees less than $5,000 to an individual employee and $20,000 in the aggregate with respect to business travel expenses in the ordinary course of business consistent with past practice); (v) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus mortgage or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with pledge any of the directors, officers, Employees, agents Assets; (vi) merge or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement consolidate with any directors other entity in any transaction, or officers of sell any business or Assets other than with respect to customer agreements approved in writing by the Company Purchaser (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property than with respect to the units or other equity interests sale of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected assets identified in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of BusinessSection 1.3(m) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; Seller Disclosure Letter); (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; change its accounting policies except as required by GAAP; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications employment terms for any of its directors or prices or terms of distributions of such products; officers; (ix) alter, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to employees, directors or Affiliates of the Seller or its Subsidiaries or enter into any transaction new, or enter intoamend any existing, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; employment agreements; (x) enter into make any Contract, understanding or commitment that restrains, restricts, limits or impedes change to the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; Seller Benefit Plans; (xi) terminate, amend, restate, supplement amend or waive cancel or agree to the amendment or cancellation of any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease Assumed Contract or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or enter into a contract that would result have been an Assumed Contract had such contract been in a loss existence as of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xviixii) agree to do anything pay, loan or advance (Aother than the payment of compensation, directors' fees or reimbursement of expenses in the ordinary course of business) prohibited by this Section 6.2any amount to, or sell, transfer or lease any properties or assets (Breal, personal or mixed, tangible or intangible) that would make to, or enter into any agreement with, any of the representations and warranties of the Company in this Agreement its officers or directors or any Affiliate or Associate of the Company Documents untrue or incorrect in any material respect or could result in any of its officers or directors; (xiii) form or commence the conditions to the Closing not being satisfied operations of any business or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.any corporation, partnership, joint venture, business association or other business organization or division thereof;

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of NewcoBuyer, between the date hereof and the Closing, Sellers and the Company and each of the Subsidiaries shall: (i) conduct the Business respective businesses of the Company and the Subsidiaries only in the Ordinary Course of Business; (ii) use its their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and the Subsidiaries and (B) preserve the present relationships with Persons having business dealings with the Company and the Subsidiaries (including customers clients, customers, suppliers and suppliersservice providers); (iii) use commercially reasonable efforts to ensure that each Contract entered into after the date of this Agreement will not require the procurement of any consent, waiver or novation or provide for any material change in the obligations of any party hereto in connection with, or terminate as a result of the consummation of, the transactions contemplated hereby, and give reasonable advance notice to Buyer before allowing any Material Contract or material right thereunder to lapse or terminate by its terms; (iv) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practiceand the Subsidiaries in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties of the Company and the Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (ivv) (A) maintain the books, accounts and records of the Company and the Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of the Company; Company and the Subsidiaries, and (vD) comply make each insurance claim in relation to the Company and the Subsidiaries promptly and in accordance with the capital expenditure plan requirements of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)relevant policy, including making such capital expenditures except if Buyer agrees otherwise in the amounts and at the times set forth in such plan;writing; and (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement on Schedule 6.2(b) or with the prior written consent of NewcoBuyer, the Company and the Subsidiaries shall not: (i) (A) increase the salary issue any notes, bonds or other compensation of debt securities or any director capital stock or Employee of the Company other equity securities or any securities convertible, exchangeable or exercisable into any capital stock or other equity securities; (ii) borrow any amount or incur or become subject to any material Liabilities, except for normal year-end increases current Liabilities incurred in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any advances on existing revolving lines of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred credit in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter and Liabilities under Contracts entered into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (viiiii) enter intodischarge or satisfy any material Lien, modify pay any material Liability or terminate waive or release any labor material right of any of the Company or collective bargaining agreement or, through negotiation the Subsidiaries other than current Liabilities paid in the Ordinary Course of Business; (iv) declare or otherwise, make any commitment payment or incur any Liability distribution of cash or other property to any labor organization its shareholders with respect to its capital stock or other equity securities or purchase, redeem or otherwise acquire, directly or indirectly, any Employeeshares of its capital stock or other equity securities (including, without limitation, any warrants, options or other rights to acquire its capital stock or other equity securities); (viiiv) introduce mortgage or pledge any of its properties or assets or subject them to any material change with respect to the operation Lien, except Liens for current property Taxes not yet due and payable; (vi) sell, assign or transfer any of the Businessits tangible assets, including any material change in the types, nature, composition or quality of products or services, or, other than except in the Ordinary Course of Business, make or cancel any change in product specifications material debts or prices or terms of distributions of such productsclaims; (ixvii) enter into acquire, license, disclose, sell, assign or transfer any transaction Intellectual Property rights, or enter intodisclose any material Confidential Information to any Person without obtaining an agreement, modify in usual and customary form and substance, from such Person protecting the confidentiality of such Confidential Information; (viii) suffer any extraordinary losses or renew waive any Contract which by reason rights of its size material value, whether or otherwise is not in the Ordinary Course of Business; (ix) make any single capital expenditure or commitment in excess of 10,000 or capital expenditures or commitments that aggregate in excess of $20,000; (x) enter into make any Contractloans or advances, understanding or commitment that restrainsincluding recruiting inducements, restrictsto, limits or impedes guarantees for the ability of the Businessbenefit of, or the ability of Newco or Purchaserany investments in, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsPersons; (xi) terminatesuffer any damage, amenddestruction or casualty loss exceeding, restatein the aggregate, supplement $25,000 whether or waive not covered by insurance; (xii) make any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, investment other than in the Ordinary Course of Business or organize any subsidiary; (xiii) enter into any other transaction, other than in the Ordinary Course of Business; (xiv) make any payments for political contributions or make any bribes, kickback payments or other illegal payments; (xv) hire or appoint any Employee, officer, Independent Contractor, or advisor; (xvi) increase any officer’s or Employee’s compensation, incentive arrangements or other benefits; (xvii) amend its articles of incorporation or bylaws or comparable governing documents; (xviii) directly or indirectly engage in any transaction, arrangement or Contract with any officer, director, manager, partner, shareholder or other insider or Affiliate which is not at arm’s length; (xix) transfer, issue, sell, pledge, encumber or dispose of the equity interests or other securities of, or other ownership interests in, the Company or the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire equity interests or other securities of, or other ownership interests in, the Company or the Subsidiaries; (xx) effect any recapitalization, reclassification, stock split, combination or like change in its capitalization, or amended the terms of any of its outstanding securities; (xxi) make a change in its accounting or Tax reporting principles, methods or policies; (xxii) (A) make, change or revoke any Tax election (other than the Tax election described in Section 8.7(f) of this Agreement), settle or compromise any Tax Claim or Liability or enter into a settlement or compromise, or change (or make a request to any Taxing Authority to change) any material aspect of its method of accounting for Tax purposes, or (B) Permitprepare or file any Tax Return (or any amendment thereof) unless such Tax Return shall have been prepared in a manner consistent with past practice and the Company and the Subsidiaries provided Buyer a copy thereof (together with supporting papers) at least three (3) Business Days prior to the due date thereof for Buyer to review and approve (such approval not to be unreasonably withheld or delayed); (xiixxiii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,00015,000; (xiiixxiv) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesLiabilities; (xivxxv) take amend any action which would adversely affect the ability of the parties insurance contract or fail to consummate the transactions contemplated by this Agreementnotify any insurance claim; (xvxxvi) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet amend, modify or terminate any Plan, except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementextent an amendment was required to comply with applicable Law; or (xviixxvii) agree to do anything (A) prohibited by this Section 6.2, or (B) that which would make any of the representations and warranties of the Company Company, the Subsidiaries or Sellers in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyrespect.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Seller shall use their best efforts, and shall cause the Company shallto: (i) conduct Conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice; (ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company; (iii) maintain Maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply Comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Seller shall not, and shall cause the Company not to: (i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company; (ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company; (iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company; (iv) Amend the certificate of incorporation or by-laws of the Company; (A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company; (iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables; (iiivii) subject Subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company; (ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyCompany except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser; (vix) Cancel or compromise any debt or claim or waive or release any material right of the Company except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice; (x) Enter into any commitment for capital expenditures or the purchase of assets out of the ordinary course in excess of $5,000; (xi) Permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice; (xii) Permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Seller; or (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing and further to any obligations as debtors-in-possession under the Bankruptcy Code and except (1) as set forth on Schedule 8.2(a), (2) as required by applicable Law, (3) as otherwise expressly provided contemplated by this Agreement or (4) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company Sellers shall: (i) use commercially reasonable efforts to maintain the Purchased Assets in the Ordinary Course of Business, pay expenses and payables, xxxx customers, collect receivables, purchase Inventory, repair and continue normal maintenance (normal wear and tear excepted) and otherwise conduct the Business only in the Ordinary Course of Business; (ii) (A) comply in all material respects with all Laws and Assumed Contracts and Assumed Executory Contracts, (B) maintain all existing Permits applicable to the Business, and (C) pay all applicable Taxes as such Taxes become due and payable; (iii) Use commercially reasonable efforts to maintain working capital and current asset and current liability levels consistent with those reflected in the Sellers’ financial statements previously provided to Purchaser; (iv) maintain in full force and effect all Purchased Intellectual Property; (v) utilize commercially reasonable efforts to pursue Section 363 of the Bankruptcy Code sales processes and to comply at all times with the Plan and the Confirmation Order; (vi) use its their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Business and (B) preserve the present relationships with Persons having business dealings customers and suppliers of the Business; and (vii) promptly inform Purchaser in writing of the occurrence or non-occurrence of any event known to any Seller which would cause the condition set forth in Section 10.1(a) not to be satisfied or the breach of any covenant hereunder by any Seller. (b) Subject to any obligations as debtors-in-possession under the Bankruptcy Code and except (1) as set forth on Schedule 8.2(b), (2) as required by applicable Law, (3) as otherwise contemplated by this Agreement or (4) with the Company prior written consent of Purchaser, no Seller shall solely as it relates to the Business: (including customers and suppliersi) modify or amend, in any material respect, or terminate any Material Contract or waive, release or assign any material rights or claims thereunder; (ii) enter into any contract or transaction relating to the purchase of assets primarily for use in the Business in excess of fifty thousand dollars ($50,000); (iii) maintain (A) all increase salaries or wages, declare bonuses, increase compensation or benefits or institute any new employment arrangement, benefit plan or program with respect to any Employee, except as required by law, as required by the terms of the assets and properties of, previously existing Employee Plans or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and except that Sellers can declare or pay accounts payable and other Liabilities set forth on bonuses or enter into deferred compensation or similar arrangements in connection with the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations retention of the Companycontinued services of directors, employees or consultants; (viv) comply with the capital expenditure plan sell, lease, transfer, mortgage, encumber, alienate or dispose of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company Purchased Assets except for normal year-end increases sales of Inventory in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company;and (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.28.2. (c) Prior to the Closing, (B) that would make each of the Sellers shall take any and all necessary actions to transfer, assign, record or perfect in its name record title to any of its Purchased Assets that is not presently held or recorded in its name, including, without limitation, filing any necessary notices of assignment in the representations United States Patent and warranties of the Company in this Agreement Trademark Office or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect United States Copyright Office, as applicable, with respect to the CompanyPurchased Intellectual Property.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto: (i) conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice; (ii) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company; (iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to: (i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company; (ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company; (iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company; (iv) amend the certificate of incorporation or by-laws of the Company; (v) (A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iiivi) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company; (ivvii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the Company except, with respect to the items listed on Schedule 5.2(b)(vii) hereto, as previously consented to by the Purchaser; (viii) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business; (ix) enter into any commitment for capital expenditures of the Company in excess of $25,000 for any individual commitment and $100,000 for all commitments in the aggregate; (x) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company; (vxi) except as provided permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in Section 6.6 hereof, the ordinary course of business consistent with past practice; (xii) permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSeller; or (xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto: (i) conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice; (ii) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company; (iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to: (i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company; (ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company; (iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company; (iv) amend the certificate of incorporation or by-laws of the Company; (A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iiivi) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company; (ivvii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the Company except as previously consented to by the Purchaser; (viii) cancel or compromise any debt or claim or waive or release any material right of the Company except in the ordinary course of business; (ix) enter into any commitment for capital expenditures of the Company in excess of $25,000 for any individual commitment and $100,000 for all commitments in the aggregate; (x) enter into, modify or terminate any labor or collective bargaining agreement of the Company or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company; (vxi) except as provided permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in Section 6.6 hereof, the ordinary course of business consistent with past practice; (xii) permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection any Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSeller; or (xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by The Company covenants and agrees that, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or with the prior written Closing unless the Investors otherwise consents in writing (which consent of Newcoshall not be unreasonably withheld, between the date hereof and the Closing, conditioned or delayed) the Company shall: , and shall cause each of its Subsidiaries to, (i) conduct the Business its business only in the Ordinary Course of Business; ordinary course and consistent with past practice; (ii) use commercially reasonable best efforts to preserve and maintain its assets and properties and its relationships with its customers, suppliers, advertisers, distributors, agents, officers and employees and other persons with which it has significant business relationships; (iii) use its commercially reasonable best efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) all of the material assets and properties of, it owns or used by, uses in the Company ordinary course of business consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; ; (iv) (A) maintain use its commercially reasonable best efforts to preserve the books, accounts goodwill and records ongoing operations of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; its business; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures maintain its books and records in the amounts usual, regular and at the times set forth in such plan; ordinary manner, on a basis consistent with past practice; and (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance . Notwithstanding the forgoing and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided contemplated by this Agreement or with the prior written Transaction Agreements or as consented to by the Investors in writing (which consent shall not be unreasonably withheld, conditioned or delayed), during the period from the date of Newcothis Agreement through and including the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to: (a) (i) (A) increase split, combine or reclassify any of its capital stock or issue or authorize the salary or other compensation issuance of any director other securities in respect of, in lieu of or Employee in substitution for shares of its capital stock, or (ii) purchase, redeem or otherwise acquire any capital stock in the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directorsSubsidiaries or any other securities thereof or any rights, officers, Employees, agents warrants or representatives of the Company or otherwise modify or amend or terminate options to acquire any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash shares or other property with respect securities, except in the ordinary course of business pursuant to the units or other equity interests of the Company's employee benefit plans; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (vb) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except set forth in the Ordinary Course disclosure letter of Business; (vii) enter intoeven date herewith, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties that is reasonably likely to consummate the transactions contemplated by this Agreement; result in (xvi) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company set forth in this Agreement Article IV becoming false or any of the Company Documents untrue or incorrect inaccurate in any material respect as of, or could result in at any time prior to, the Closing Date or (ii) any of the conditions to the Closing obligations of each Investor set forth in Section 7.2 not being satisfied satisfied; (c) amend the charter, bylaws or other comparable organizational documents of the Company in a manner likely to adversely affect any Investor; or (Cd) that could agree to take, any of the foregoing actions. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be reasonably expected prevented from, or obligated to have a Material Adverse Effect obtain the consent of the Investors prior to, (i) issuing shares of its capital stock or entering into agreements with respect thereto, including with respect to the Companyregistration rights, or (ii) engaging in any merger, acquisition or business combination transaction.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 7.2(a), (ii) for any exercise of Options existing as of the date hereof, (iii) as required by applicable Law, (iv) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoParent (which consent shall not be unreasonably withheld, between the date hereof and the Closingconditioned or delayed), the Company shall: , and shall cause each of its Subsidiaries, to use commercially reasonable efforts to (iA) conduct the Business respective businesses and operations of the Company and its Subsidiaries only in the Ordinary Course of Business; Business in all material respects; (iiB) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present material relationships with Persons having business dealings with the Company and/or its Subsidiaries (including customers and suppliers); ; (iiiC) maintain in the Ordinary Course of Business in all material respects (A1) all of the assets and properties of, or used by, the Company consistent with past practiceor its Subsidiaries in their current condition, ordinary wear and tear excepted, and (B2) insurance upon all of the properties and assets and properties of the Company in all material respects and its Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement;this (iv) (A1) maintain the books, accounts and records of the Company and its Subsidiaries in the Ordinary Course of Business, (B2) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and procedures, without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line otherwise in the Ordinary Course of creditBusiness, and (C3) comply in all material respects with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures and its Subsidiaries in the amounts Ordinary Course of Business in all material respects; and at the times set forth in such plan; (viE) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except (i) as set forth on Schedule 7.2(b), (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoParent (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall not, and shall not permit its Subsidiaries to: (i) except for the issuance of shares of capital stock pursuant to the exercise of Options existing as of the date hereof, issue, pledge, encumber, or sell any shares of capital stock or other securities of the Company or any of its Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of its Subsidiaries; (ii) amend the Company Charter Documents or any Subsidiary Charter Documents or effect any stock split, reverse stock split, stock dividend (including any dividend or distribution or securities convertible into capital stock), reorganization, reclassification, combination, recapitalization or other like change with respect to shares of capital stock of the Company or any of its Subsidiaries or otherwise amend any terms of any shares or series of capital stock of the Company or any of its Subsidiaries; (iii) except as set forth in Schedule 7.2(b), or as otherwise required by the terms of any Company Benefit Plan set forth on Schedule 5.13(a), (A) increase the salary compensation or other compensation benefits of any director director, officer, employee or Employee consultant of the Company or any of its Subsidiaries (except for normal yearincreases in salaries and wages of non-end increases officer employees in the Ordinary Course of BusinessBusiness and other than for payments of Permitted Bonuses), (B) grant accelerate the vesting or payment of any bonus, compensation or benefit under any Company Benefit Plan (other than the acceleration of vesting of Options or other direct or indirect compensation to any Employee or directorequity securities), (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or any of its Subsidiaries is a party; party or involving any employee, consultant or director of the Company or any of its Subsidiaries (other than for payments of Permitted Bonuses) or (ED) pay adopt, amend or make terminate any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyCompany Benefit Plans; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (Biv) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease lease, rent or otherwise dispose (including cancel or compromise any debt or claim or waive or release any material right) of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) material properties or assets of the CompanyCompany or any of its Subsidiaries; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into make any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution toto or investment in any Person (other than (A) loans, advances or otherwise acquire the securities of any Person; (vi) cancel capital contributions to or compromise any debt or claim, or waive or release any material right investments in a Subsidiary of the Company except in the Ordinary Course of BusinessBusiness and (B) routine advances to employees for business expenses in the Ordinary Course of Business in an amount not exceeding $10,000 to any individual employee); (viivi) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation negotiations or otherwise, make any commitment or incur any Liability liability to any labor organization organizations; (vii) enter into or agree to enter into any merger or consolidation with any corporation or other entity, or acquire the securities or any division, business or all or substantially all of the assets of any other Person; (viii) except to the extent required by Law, make, change or rescind any election relating to Taxes, adopt or change any method of Tax accounting in respect of Taxes, file any amended Tax Return in respect of Taxes, or settle or compromise any claim, investigation, audit or controversy relating to Taxes, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes, enter into any closing agreement with respect to any EmployeeTax, surrender any right to claim a Tax refund, offset or other reductions in Tax liability, change any Tax accounting period, obtain a Tax ruling, prepare or file any material Tax Return or claim of refund (unless consistent with past practice and Parent reviews and consents to such filing or claim), enter into any Tax sharing agreement (excluding any agreements whose principal subject matter is not Taxes), or enter into any intercompany transaction giving rise to deferred gain or loss of any kind, in each case if such action could reasonably be expected to materially increase Taxes in a Post-Closing Tax Period; (viiiix) except to the extent required by Law or GAAP, make any material change to any of its methods of accounting or methods of reporting revenue and expenses or accounting practices; (x) grant any licenses under any Intellectual Property of the Company and its Subsidiaries (other than non-exclusive licenses granted in the Ordinary Course of Business); (xi) incur (A) any Indebtedness (other than borrowings in the Ordinary Course of Business under the Company’s existing credit facilities) or (B) any Lien (other than Permitted Exceptions) on any asset or properties (whether tangible or intangible) of the Company or any of its Subsidiaries (other than purchase money security interests in connection with the acquisition of equipment in the Ordinary Course of Business); (xii) enter into any commitment for capital expenditures of the Company or any Subsidiaries in excess of $100,000 for any individual commitment or $500,000 for all commitments in the aggregate; (xiii) introduce any material change with respect to the operation of the BusinessCompany or any Subsidiary, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any material change in product specifications or prices or terms of distributions of such productsproducts or materially change its pricing, discount, allowance or return policies or grant any material pricing, discount, allowance or return terms for any customer or supplier not in accordance with such policies; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (xxiv) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, Company or the ability of Newco or Purchaser, any Subsidiary to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsPersons; (xixv) other than pursuant to the express terms of such Contract or to the extent not material and in the Ordinary Course of Business, terminate, amend, restate, supplement or waive any material rights under any (A) Material Significant Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business Customer License Agreement or (B) Permit; (xiixvi) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000500,000; (xiiixvii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables any required maintenance or other liabilities; (xiv) take similar fees or otherwise fail to make required filings or payments required to maintain and further prosecute any action which would adversely affect the ability applications for registration of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementIntellectual Property; or (xviixviii) agree or commit in writing to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company7.2(b).

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (I) as required by applicable Law, (II) as otherwise expressly provided contemplated by this Agreement or (III) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between delayed or conditioned, unless the date hereof and action to be taken by the ClosingCompany would be reasonably expected to have a Material Adverse Effect), the Company shall, and shall cause the Subsidiaries to: (i) conduct the Business respective businesses of the Company and the Subsidiaries only in the Ordinary Course of Business; (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and the Subsidiaries, and (B) preserve the present relationships with Persons having business dealings customers and suppliers of the Company and the Subsidiaries; and (iii) willfully do any other act which, or fail to take any reasonable action which failure, would cause any representation or warranty of the Company or any Seller in this Agreement (without giving effect to any materiality limitations set forth therein) to become untrue in any material respect. (b) Without limiting Section 8.2(a) above, except (I) as required by applicable Law, (II) as otherwise contemplated by this Agreement or (III) with the prior written consent of Purchaser, prior to the Closing, the Company shall not, and shall not permit the Subsidiaries to: (including customers and suppliers)i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other Equity Securities of, or other ownership interests in, the Company or any of the Subsidiaries; (ii) transfer, issue, sell or dispose of any shares of capital stock or other Equity Securities of the Company or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other Equity Securities of the Company or any of the Subsidiaries; (iii) maintain (A) all of effect any recapitalization, reclassification or like change in the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties capitalization of the Company in such amounts and or any of such kinds comparable to that in effect on the date of this AgreementSubsidiaries; (iv) except as provided in Section 8.15, amend the certificate of incorporation or by-laws or comparable organizational documents of the Company or any of the Subsidiaries; (v) (A) maintain increase the books, accounts and records annual level of compensation of any director or executive officer of the Company or any of the Subsidiaries, (B) other than in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on materially increase the Balance Sheet in the Ordinary Course annual level of Business utilizing normal procedures and without discounting compensation of any Employee who is not a director or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditexecutive officer, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or directorEmployee, (CD) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus Company Benefit Plan or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or any of the Subsidiaries is a party; party or (E) pay involving a director or make any dividend or distribution of cash or other property with respect to the units or other equity interests executive officer of the Company; (ii) (A) createCompany or any of the Subsidiaries, incurexcept, assumein each case, guarantee, endorse as required by applicable Law from time to time in effect or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonCompany Benefit Plans; (iiivi) subject to any Lien Lien, any of the Assets of the Company or otherwise encumber orany of the Subsidiaries, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (ivvii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased material properties or Assets of the Company and the Subsidiaries (except for fair consideration sales of inventory in the Ordinary Course of Business) of the Company); (vviii) except as provided other than in Section 6.6 hereofthe Ordinary Course of Business, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any material debt or claim, claim or waive or release any material right of the Company except in or any of the Ordinary Course of BusinessSubsidiaries; (viiix) enter into any commitment for capital expenditures of the Company and the Subsidiaries in excess of $100,000 for any individual commitment and $250,000 for all commitments in the aggregate other than (a) such commitments for capital expenditures that are fully paid prior to Closing or (b) such commitments in respect of capital expenditures included in the CapEx Budget; (x) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation of the Company or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employeeof the Subsidiaries; (viiixi) introduce permit the Company or any of the Subsidiaries to acquire by merger or consolidation with, or merge or consolidate with, or purchase all or substantially all of the Assets of, or otherwise acquire any material Assets or business of, any Person, business, business unit, division or facility; (xii) change with respect to the operation any of the BusinessCompany’s or any of its Subsidiaries’ accounting methods, principles or practices unless required by GAAP; (xiii) revalue any of the Assets, including any material change in the types, nature, composition writing off receivables or quality of products or services, orreserves, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ixxiv) enter into any transaction or enter into, modify extend, materially and adversely modify, or renew terminate any Contract which by reason of its size Material Contract, other than customer or otherwise is not supplier contracts in the Ordinary Course of Business; (xxv) enter into (A) sell, assign, transfer, convey, lease, mortgage, pledge or otherwise dispose of or encumber any Contractmaterial Assets or any interests therein other than to secure Indebtedness, understanding except for sales of finished goods inventory or commitment that restrainsobsolete Assets in the ordinary course of business consistent with past practice or (B) sell, restricts, limits assign or impedes the ability transfer any Assets to any of the Business, Sellers or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personstheir Affiliates; (xixvi) terminatefail to expend funds for capital expenditures or commitments in accordance with the CapEx Budget; (xvii) make any material loans or advances to any Person, amendor, restateexcept for expenses incurred in the Ordinary Course of Business, supplement to any employee of the Company or waive any rights under any of its Subsidiaries; (Axviii) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, collect accounts receivable and pay accounts payable other than in the Ordinary Course of Business or (B) PermitBusiness; (xiixix) fail to maintain the material Assets of the Company and each of its Subsidiaries in substantially their current state of repair, excepting normal wear and tear; (xx) amend any Tax Return, make or rescind any material election relating to Taxes, settle or compromise any pending claim, action, suit, litigation, proceeding, arbitration, investigation, audit or threatened Legal Proceeding controversy relating to Taxes, make any material change to any of its methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the preparation of its most recent Tax Return or consent to any extension or waiver of the limitation period applicable to any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected assessment relating to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementTaxes; or (xviixxi) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company8.2.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, between from the date hereof and until the ClosingClosing Date, the Seller will (and will cause the Company shall:to): (ia) conduct operate the Business only in the Ordinary Course of Business to the best of their ability and not engage in any transaction outside of the Ordinary Course of Business; (iib) provide the Purchaser with unaudited consolidated balance sheets of the Seller and its subsidiaries as of the last day of each month between the Effective Date and the Closing, and the related unaudited statements of operations, cash flows and members’ equity for the year-to-date period then ended, no later than thirty (30) days after the end of each such month; (c) use its commercially reasonable efforts to (A) preserve the present business operationsBusiness, organization (including officers to keep available the services of key employees and Employees) and to preserve for the Business the goodwill of the Company its suppliers, franchisees, customers and (B) preserve the present relationships with Persons others having business dealings relations with the Company (including customers and suppliers)Company; (iiid) maintain (A) all proper and adequate staffing levels in accordance with Law and historical methods of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementoperation; (ive) maintain product prices; (Af) maintain the books, accounts books and records of the Company in the Ordinary Course usual, regular and ordinary manner; (g) maintain in full force and effect all Permits and not sell, transfer, license or otherwise dispose of Business, any material rights or interests under any Permits; (Bh) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on operate the Balance Sheet Business in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply compliance with all contractual applicable Permits and other obligations all applicable Laws, including all local licensing requirements and local health and fire regulations; (i) keep all of the Company’s assets of insurable character insured in accordance with industry custom and consistent with past practice; (j) consult with the Purchaser regarding all material developments, transactions and proposals relating to the Business or the Company; (k) promptly notify the Purchaser of (i) any Material Adverse Change, (ii) any physical inventory discrepancy in excess of $10,000 relating to the Business, (iii) any theft, condemnation or eminent domain proceeding or material damage, destruction or casualty loss affecting any asset or property of the Company, whether or not covered by insurance, (iv) any breach or default (or event that with notice or lapse of time would constitute a breach or default), acceleration, termination (or threatened termination), modification or cancellation of any Company Contract by any party (including by the Company), (v) comply with the capital expenditure plan termination of employment (whether voluntary or involuntary) of any officer or key employee of the Business or the termination of employment (whether voluntary of involuntary) of employees of the Business materially in excess of historical attrition in personnel, (vi) any Legal Proceeding commenced by or against the Company for 2009 set forth on and (vii) any Legal Proceeding commenced, or threatened against, the Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in or the amounts and at Seller relating to the times set forth in such plantransactions contemplated by this Agreement; (vil) comply in all material respects with all applicable Lawsnot enter into any Company Contract that (i) is not terminable upon thirty (30) days or less notice or (ii) involves the payment or receipt by the Company of more than $25,000; (viim) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate (other than by reason of the expiration thereof) any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employeethe Company; (viiin) introduce not incur or become subject to, or agree to incur or become subject to, any material change with respect to the operation Liability of the Business, Company except (i) normal trade or business obligations (including any material change in the types, nature, composition or quality of products or services, or, other than Company Contracts) incurred in the Ordinary Course of Business, make any change Business and (ii) obligations under Company Contracts in product specifications or prices or terms of distributions of such productseffect on the date hereof; (ixo) not, without fair consideration, cancel or compromise any material Liability or Claim of the Company or waive or release any material right related to the Business or the Company’s assets; (p) not breach or default (or take any action that with notice or lapse of time would constitute a breach or default), accelerate, terminate (or threaten termination), cancel or amend any Company Contract; (q) not change accounting principles or methods or cash management practices (including the collection of receivables, payment of payables, maintenance of inventory control and pricing and credit practices) of the Company, except as required by Section 4.1(r), by law or as a result of any mandatory change in accounting standards; (r) expense (and not capitalize) all purchases of equipment, supplies and fixtures (except where the size of the purchase requires it to be capitalized pursuant to GAAP and notice of such treatment is provided to the Purchaser prior to such purchase) of the Company; (s) not make any Tax election or settle or compromise any Tax liability with respect to the Company; (t) not make any loans, advances or capital contributions from the Company to, or investments by the Company in, any other Person; (u) not engage in any transactions between the Company and any Related Party; (v) not increase the aggregate compensation payable or to become payable to any person, including employees, consultants and members of the Company, inconsistent with the past practices of the Company; (w) not pay any dividends, bonuses or other cash or property to any person, including employees, consultants and members of the Company, inconsistent with the past practices of the Company; (x) not (i) increase the coverage or benefits available under (or create any new or otherwise amend) any Employee Benefit Plan or Benefit Arrangement or (ii) enter into any transaction employment, deferred compensation, severance, consulting, non-competition, employee retention plan or enter intosimilar agreement (or amend any such existing plan or agreement) involving a director, modify officer or renew employee of the Company in the capacity of director, officer or employee of the Company (other than employment terminable at will without penalty or as required to satisfy the condition set forth in Section 5.7); (y) not terminate the employment of any Contract which by reason officer or key employee of its size the Business or otherwise is terminate the employment of employees of the Business materially in excess of historical attrition in personnel; (z) not subject any of the Company’s assets to any Encumbrance; (aa) not make any payment or transfer of assets (including without limitation any repayment of indebtedness) of the Company to or for the benefit of any Related Party, other than compensation and expense reimbursements paid in the Ordinary Course of Business; (xbb) enter into any Contractnot transfer, understanding issue, sell or commitment that restrainsdispose of shares of capital stock, restricts, limits units of ownership or impedes the ability other securities of the BusinessCompany or grant options, warrants, calls or the ability of Newco other rights to purchase or Purchaser, to compete with otherwise acquire such capital stock or conduct any business or line of business in any geographic area or solicit the employment of any personsother securities; (xicc) terminatenot consolidate with, amendor merge with or into, restate, supplement or waive any rights under any Person; (Add) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than not acquire (except for purchases of inventory in the Ordinary Course of Business Business) any Company assets and not sell, assign, transfer, convey, lease or (B) Permit; (xii) settle or compromise otherwise dispose of any pending or threatened Legal Proceeding or any claim or claims forof the Company’s assets, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment reflected in the Financial Statements (except for sales of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except inventory for fair consideration in the Ordinary Course of Business under loan Business); (ee) not take any action that would cause any representation or credit agreements or arrangements up warranty set forth in Article II to the maximum amounts be untrue and other terms incorrect as in effect on of the date when made or (except in the case of this Agreementrepresentations and warranties made as of a specific date) as of any future date; orand (xviiff) not agree to (i) do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied 4.1 or (Cii) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyrefrain from doing anything required by this Section 4.1.

Conduct of the Business Pending the Closing. Sellers hereby jointly and severally covenant that, from the date hereof to and including the Closing Date, unless Buyer shall otherwise consent (such consent not to be unreasonably withheld or delayed) or as otherwise contemplated by this Agreement: (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, between the date hereof Business shall be conducted and the Closing, the Company shall: (i) conduct the Business Assets repaired and maintained only in the Ordinary Course of Business; (ii) use its commercially reasonable efforts to (A) preserve the present business operationsordinary and usual course, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) all of the assets and properties of, or used by, the Company in a manner consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company Balfour shall not: not (i) (Aexcept as set forth in Schedule 5.1(b) increase hereto make any commitment to make any capital expenditures after the salary Closing Date individually in excess of $20,000 or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course aggregate in excess of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party$250,000; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement amend or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business its material contracts; or (Biii) Permitenter into (1) any written employment or severance agreement with any Acquired Employee or (2) any new employee benefit plan, program or arrangement or amend any existing employee benefit plan, program or arrangement or grant any increases in compensation to the Acquired Employees in excess of increases in compensation consistent with the past practices of the Business; (xiic) settle or compromise except in the ordinary course of business consistent with past practice, Balfour shall not (i) other than as set forth on Schedule 5.1(c), dispose of any pending or threatened Legal Proceeding or any claim or claims for, or that would result in capital assets with a loss of revenue of, an amount that couldbook value, individually or in the aggregate, reasonably be expected to be greater than in excess of $50,00020,000 or further encumber any of its capital assets or (ii) incur, or guarantee or otherwise become liable for, any indebtedness for borrowed money; (xiiid) change Sellers shall maintain in full force and effect all insurance policies now in effect or modify its credit, collection renewals thereof covering the Assets or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesthe Business and the Employees; (xive) take any action which would adversely affect the ability Sellers shall promptly notify Buyer of the parties following of which any of them become aware: (i) any breach or violation of, default or event of default under, or actual or threatened termination or cancellation of any material contract or other material instrument relating to consummate the transactions contemplated by this AgreementBusiness; (ii) any material loss of, damage to, or disposition of any of the Assets (other than the sale or use of inventories in the ordinary course of business); and (iii) any material claim or litigation, threatened or instituted against any Seller and affecting the Business; (xvf) amend Sellers shall consult with Buyer with respect to any collective bargaining negotiations affecting the operating agreement Business and the adoption of the Companyemployee benefit plans; (xvig) agree to materially increase Liabilities from Other than in connection with the amounts Temporary Leases and Subleases no Seller shall sell, dispose of, lease, sublease, distribute, encumber or enter into any agreement, arrangement or commitment, whether oral or written, for the sale, disposition, leasing, subleasing, distribution or encumbrance of any portion of the Assets or the Business (other than the sale of obsolete equipment or the sale or use of inventories in the ordinary course of business of the Business or as set forth on the Balance Sheet except in the Ordinary Course of Business under loan item (c)(i) above) or credit agreements initiate or arrangements up participate, through agents, representatives or otherwise, in any discussions or negotiations with, or otherwise solicit from, any corporation, business or person any proposals or offers relating to the maximum amounts and other terms as in effect on disposition of any such portion of the date of this Agreement; orBusiness; (xviih) agree to do anything (A) prohibited by this Section 6.2, (B) that would No Seller shall make any material change to any business policy of the representations and warranties Business, including, without limitation, promotional, advertising, marketing, pricing, purchasing, personnel, return or product acquisition policy; and (i) Sellers shall use their respective best efforts to preserve for the benefit of the Company in this Agreement or any of Business their relations with the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyBusiness' customers and suppliers.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall use their best efforts, and shall cause the Company shallto: (i) conduct Conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice; (ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company; (iii) maintain Maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;; and (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply Comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Sellers shall not, and shall cause the Company not to: (i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company; (ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company; (iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company; (iv) Amend the certificate of incorporation or by-laws of the Company; (A) materially increase the salary or other annual level of compensation of any director or Employee employee of the Company except for normal year-end increases in the Ordinary Course of BusinessCompany, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; party or (E) pay involving a director, officer or make any dividend employee of the Company in his or distribution of cash her capacity as a director, officer or other property with respect to the units or other equity interests employee of the Company; (iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables; (iiivii) subject Subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company; (ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of the CompanyCompany except, with respect to the items listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser; (vix) Cancel or compromise any debt or claim or waive or release any material right of the Company except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice; (x) Enter into any commitment for capital expenditures or the purchase of assets out of the ordinary course in excess of $5,000; (xi) Permit the Company to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice; (xii) Permit the Company to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change Except for transfers of cash pursuant to normal cash management practices, permit the Company to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Sellers or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Sellers; or (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement (including the prosecution of the Chapter 11 Case) or with the prior written consent of NewcoPurchaser, between Sellers shall, and shall cause their Subsidiaries to, with respect to the date hereof and the Closing, the Company shallBusiness only: (i) except as set forth in Schedule 8.3, conduct the Business only in the Ordinary Course of BusinessBusiness as debtors in possession; (ii) use its their commercially reasonable efforts efforts, as debtors in possession, to (A) preserve the their present business operations, organization (including officers and Employeesemployees) and goodwill of the Company Sellers and (B) preserve the present relationships with Persons having business dealings with the Company Sellers (including without limitation customers and suppliers); (iii) maintain (A) all of the assets Purchased Assets and properties ofLicensed Assets in their current condition, or used by, the Company consistent with past practice, ordinary wear and tear excepted and (B) insurance upon all of the assets Purchased Assets and properties of the Company Licensed Assets in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company Sellers in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay pay, with respect to the Purchased Contracts, post-petition accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures when due and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) subject to existing defaults and future payment defaults, comply with all contractual and other obligations of under the CompanyPurchased Contracts; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viiivi) pay all maintenance and similar fees and not take all other appropriate actions as necessary to prevent any action which would adversely affect the abandonment, loss or impairment of all Intellectual Property ability of the Companyparties to consummate the transactions contemplated by this Agreement. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement (including the prosecution of the Chapter 11 Case) or with the prior written consent of NewcoPurchaser, the Company Sellers shall not, and shall not permit their Subsidiaries to, with respect to the Business only: (i) (A) increase with respect to the salary or other compensation of any director or Employee of the Company except for normal year-end increases Employees set forth in the Ordinary Course of BusinessSchedule 9.1, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Sellers or any of their Subsidiaries is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) createmake or rescind any election relating to Taxes or settle or compromise any claim, incuraction, assumesuit, guaranteelitigation, endorse proceeding, arbitration, investigation, audit or otherwise become liable or responsible with respect controversy relating to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related Taxes to the Permitted Exceptionsextent that such election, settlement or compromise would have any material post-Closing effect that would be binding on Purchaser for taxable periods (xor portions thereof) beginning on or after the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Closing Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the CompanySellers; (viv) except as provided with respect to the Employees set forth in Section 6.6 hereofSchedule 9.1, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employeeorganization; (viiiv) except as set forth in Schedule 8.3, introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition (except as required by the FDA) or quality of products the Products or services, or, other than in the Ordinary Course of Business, or make any change in product Product specifications or prices or terms of distributions of such productsProducts; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (xvi) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsarea; (xivii) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease Purchased Contract or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xviiviii) agree to do anything (A) prohibited by this Section 6.2, (B) that 8.3 or anything which would make any of the representations and warranties of the Company Sellers in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyrespect.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as otherwise expressly provided by this Agreement set forth on Schedule 7.2(a), or (ii) with the prior written consent of Newco, between the date hereof and the ClosingAcquiror, the Company and each of its Subsidiaries shall: (iA) conduct the Business respective businesses only in the Ordinary Course of Business, except for the acquisition of Interest B as contemplated under Section 7.9; (iiB) use its commercially reasonable efforts to maintain working capital of the Company at levels consistent with past practice; (AC) pay its debts and Taxes when due and properly withhold all Taxes (such as withholding of Taxes from Employees or Former Employees); and (D) use its commercially reasonable efforts to preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and each of its Subsidiaries. (b) Except (i) as set forth on Schedule 7.2(b) or (ii) with the prior written consent of Acquiror, the Company and each of its Subsidiaries shall not: (A) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company; (B) preserve the present relationships with Persons having business dealings with issue or sell any shares of capital stock or other securities of the Company (including customers and suppliers)or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company; (iiiC) maintain (A) all effect any recapitalization, reclassification or like change in the capitalization of the assets and properties ofCompany, or used by, except to the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementextent required by Law; (ivD) (A) maintain amend the books, accounts and records articles of incorporation or by-laws or comparable organizational documents of the Company in the Ordinary Course of Business, Company; (BE) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet than in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts as required by Law or Liabilities utilizing all available cash and any available line of creditContract, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A1) increase the salary or other annual level of compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessEmployee, (B2) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or directorEmployee, (C3) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus Employee Plan or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D4) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition competition, retention or similar agreement or arrangement with any directors or officers of the Company Employee, (or amend any such agreement) to which the Company is a party; party or (E) pay or make involving any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) Employee except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (ivF) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets of the Company or any of its Subsidiaries (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business) , for the purpose of disposing of obsolete or worthless assets or the Companyacquisition of Interest B in accordance with Section 7.9); (vG) except as provided other than in Section 6.6 hereofthe Ordinary Course of Business, cancel or compromise any material debt or claim or waive or release any material right of the Company or any of its Subsidiaries; (H) enter into, modify, extend or terminate any labor or collective bargaining agreement; (I) enter into or agree to enter into any merger or consolidation with any other Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise agreement to acquire the securities of any other Person; (viJ) cancel incur any Indebtedness for borrowed money or compromise issue any debt securities or claimassume, guarantee or endorse, or waive otherwise as an accommodation become responsible for, the obligations of any person, or release make any material right of the Company except in the Ordinary Course of Businessloans or advances, or enter into any Hedging Arrangements; (viiK) enter into, modify except to the extent required by Law or terminate any labor or collective bargaining agreement or, through negotiation or otherwiseGAAP, make any commitment or incur any Liability material change to any labor organization with respect to any Employeeof its methods of accounting or methods of reporting revenue and expenses or accounting practices; (viiiL) introduce make any material change with respect to the operation of the Business, including any material change new capital expenditures exceeding $50,000.00 in the types, nature, composition or quality of products or services, or, aggregate (other than the acquisition of Interest B in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsaccordance with Section 7.9); (ixM) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business enter into, modify, amend or (B) Permitterminate any Material Contract; (xiiN) (1) make, revoke or change any material Tax election or (2) settle or compromise any pending material federal, state, local or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000foreign income Tax liability; (xiiiO) change participate or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past dueengage in any transaction that constitutes a “reportable transaction” as such term is defined in Treasury Regulation Section 1.6011-4(b)(1) or fail to pay or delay payment of payables or other liabilitiesany transaction that constitutes a “listed transaction” as such term is defined in Treasury Regulation Section 1.6011-4(b)(2); (xivP) take make any action which would adversely affect principal payments to the ability holder of the parties to consummate the transactions contemplated by this Agreementthat certain 6% Exchangeable Secured Subordinated Debenture of 1212500 Alberta Ltd. due April 25, 2008; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xviiQ) agree to do anything (A) prohibited by this Section 6.2, 7.2(b); or (BR) take any action that would make any of the representations representation and warranties warranty of the Company in this Agreement or any of the Company Documents untrue or incorrect hereunder inaccurate in any material respect at, or could result as of any time prior to, the Effective Time or omit to take any action necessary to prevent any such representation or warranty from being inaccurate in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyat any such time.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (w) as set forth in Section 7.2(a) of the Company Disclosure Letter, (x) as required by applicable Law, (y) as otherwise expressly provided contemplated by this Agreement Agreement, any of the Seller Documents or the Company Documents, or (z) with the prior written consent of NewcoBuyer (such consent not to be unreasonably withheld, between the date hereof conditioned or delayed; provided, that Buyer shall respond as soon as reasonably practicable following receipt of a written request for such consent), Panadero Corp shall, and the Closing, the Company shallshall cause its Subsidiaries to: (i) conduct the Business only respective businesses of Panadero Corp and the Subsidiaries in the Ordinary Course of Business; (ii) cause Panadero Aggregates to make a valid election under Section 754 of the Code; and (iii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Panadero Corp and its Subsidiaries, and (B) preserve the present relationships with Persons having business dealings customers and suppliers of Panadero Corp and its Subsidiaries. (b) Other than (1) as set forth in Section 7.2(b) of the Company Disclosure Letter, (2) as required by applicable Law, (3) as otherwise contemplated by this Agreement, any of the Seller Documents or any of the Company Documents or (4) with the Company prior written consent of Buyer (including customers such consent not to be unreasonably withheld, conditioned or delayed; provided, that Buyer shall respond as soon as reasonably practicable following receipt of a written request for such consent), Panadero Corp shall not, and suppliers)shall not permit its Subsidiaries to: (i) transfer, issue, sell, purchase, redeem, retire or grant any equity interests of Panadero Corp or any of its Subsidiaries or grant any options, warrants, calls or other rights to purchase or otherwise acquire equity interests of Panadero Corp or any of its Subsidiaries; (ii) reclassify, combine, split, subdivide or amend the terms of 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; (iii) maintain (A) all amend in any material respect the certificate of the assets and properties ofincorporation, bylaws or used by, the Company consistent with past practice, and (B) insurance upon all comparable organizational documents of the assets and properties Panadero Corp or any of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementits Subsidiaries; (iv) declare, set aside or pay any non-cash dividend or non-cash distribution; (Av) maintain the booksexcept (x) as required pursuant to any existing Labor Agreement, accounts and records of the other Contract or Company in the Ordinary Course of BusinessBenefit Plan, or (y) as required by applicable Law, (B1) continue materially increase the amount of any bonus, salary or other compensation to collect accounts receivable and pay accounts payable and any Company Personnel (other Liabilities set forth on the Balance Sheet than any such increase in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations to an employee who is not a member of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(vExecutive Management Team), including making such capital expenditures (2) establish, adopt, enter into or amend in any material respect, or materially increase the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonmentpayments or benefits under, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this any Labor Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any Benefit Plan (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, that would be a Labor Agreement or with any Company Benefit Plan if it were in existence as of the directorsdate hereof), officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, than (x) the Indebtedness reflected in the Balance Sheetconnection with renewals, (y) the Indebtedness incurred modifications or replacements in the Ordinary Course of Business since the Balance Sheet Dateof health insurance and other Company Benefit Plans that are customarily renewed, modified or replaced on an annual basis, and (zy) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except offer letters to new hires engaged in the Ordinary Course of BusinessBusiness who are not members of the Executive Management Team, payprovided that such offer letters do not provide for change in control, prepayretention or severance benefits, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D3) make take any loans, advances of capital contributions to, action to accelerate any rights or investments in, benefits under any other PersonCompany Benefit Plan; (iiivi) subject to enter into any Lien commitment for any capital expenditures of Panadero Corp or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer any of its Subsidiaries to be subjected to any Lien or otherwise encumbered, any made following the Closing in excess of the Purchased Assetsamounts set forth in Section 7.2(b)(vi) of the Company Disclosure Letter; (ivvii) without duplication of subsection (vi), acquire or lease any material properties or assets assets, or sell, lease, sublease, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets properties or assets of Panadero Corp and its Subsidiaries with a value in excess of $2,000,000 individually, or $5,000,000 in the aggregate; (viii) amend or terminate, or assign any material rights or claims under, any Lease (except for fair consideration renewals under the terms thereof, in the Ordinary Course of Business) of the Company); (vix) change its fiscal year or its present accounting methods or principles in any material respect, except as provided required by GAAP or by the Companies’ auditors; (x) change any annual Tax accounting period, change any material method of Tax accounting, amend any material Tax Returns, settle any material Tax claim, make or change any material election relating to Taxes or take any action that would result in Section 6.6 hereofa change of the tax classification of Panadero Aggregates or any of its Subsidiaries; (xi) incur any Indebtedness in excess of $2,000,000 other than in the Ordinary Course of Business; provided, that, for the avoidance of doubt, borrowings under the Credit Facilities, as amended, in amounts not to exceed the aggregate amount of commitments in effect as of the date of this Agreement, shall not require the consent of Buyer; (xii) permit Panadero Corp or any of its Subsidiaries to enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business corporation or invest in, make a loan, advance or capital contribution toother entity, or otherwise acquire the securities of any other Person, except, in each case for transactions between Panadero Corp and/or any of its Subsidiaries; (vixiii) cancel settle any pending or compromise threatened litigation, proceeding or other Action other than for an amount not in excess of $500,000 individually or $1,000,000 in the aggregate, provided that such settlement does not result in any debt continuing obligations (other than customary confidentiality obligations) of the Companies or claimtheir Subsidiaries and does not involve any injunctive or equitable relief, or waive impose restrictions (other than customary confidentiality obligations), on the Companies or release their Subsidiaries; (xiv) subject any material right asset or property to any Lien, other than Permitted Exceptions or Liens that will be released at or prior to the Closing; (xv) amend or terminate, or assign any material rights or claims under, any Company Contract or enter into any Contract that would have constituted a Company Contract if such Contract had been entered into at or prior to the date of the Company except this Agreement, in each case other than in the Ordinary Course of Business; (viixvi) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into granting to any ContractPerson (other than Panadero Aggregates or any of its Subsidiaries) an option or a first refusal, understanding first-offer or commitment that restrainssimilar preferential right to purchase or acquire any material assets of Panadero Corp or its Subsidiaries or (y) containing exclusivity arrangements, restricts, limits a “most favored nation” clause or impedes a covenant not to compete (or otherwise restricting the ability of the Business, Companies or the ability any of Newco or Purchaser, their Subsidiaries to compete with or conduct any business or line of business engage in any geographic area or solicit business) in each case that is binding on the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding Companies or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementtheir Subsidiaries; or (xvii) agree or commit, whether in writing or otherwise, to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company foregoing. (c) Notwithstanding anything contained in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the contrary, Panadero Corp and its Subsidiaries shall be permitted to maintain through the Closing not being satisfied or Date the cash management systems of Panadero Corp and its Subsidiaries, maintain the cash management procedures as currently conducted by Panadero Corp and its Subsidiaries, and periodically settle intercompany balances consistent with past practices (C) that could including through dividends and capital contributions and all such intercompany balances shall be reasonably expected settled at the Closing in accordance with their terms). Panadero Corp and its Subsidiaries are allowed to have a Material Adverse Effect with respect dividend all Cash and Cash Equivalents of Panadero Corp and its Subsidiaries to the CompanySellers immediately prior to the Adjustment Time.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Seller Schedule 7.2, (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld or delayed), between Seller shall, solely as it relates to the date hereof and the Closing, the Company shallBusiness: (i) conduct the Business only in the Ordinary Course of Business;; and (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Seller and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers);suppliers of Seller. (b) Except (i) as set forth on Seller Schedule 7.2, (ii) as required by applicable Law, (iii) maintain (A) all of the assets and properties of, as otherwise contemplated by this Agreement or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) with the prior written consent of Purchaser (Awhich consent shall not be unreasonably withheld or delayed), Seller shall not, solely as it relates to the Business: (i) maintain the books, accounts and records of the Company other than in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other annual level of compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessEmployee, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee or directorEmployee, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation Employee Benefit Plan for disability, sick leave, deferred compensation, bonus the Employees or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) with an Employee, except, in each case, as required by applicable Law from time to which the Company is a party; time in effect or (E) pay or make by any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyEmployee Benefit Plans; (ii) (A) createmake or rescind any material election relating to Taxes, incursettle or compromise any claim, assumeaction, guaranteesuit, endorse litigation, proceeding, arbitration, investigation, audit or otherwise become liable controversy relating to Taxes, or responsible with respect except as may be required by applicable Law or GAAP, make any material change to (whether directly, contingently any of its methods of accounting or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course preparation of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personits most recent Tax Returns; (iii) subject any of the Purchased Assets to any Lien or otherwise encumber orLien, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets that would constitute Purchased Assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business) Business or for the purpose of the Companydisposing of obsolete or worthless assets); (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with with, any Person, and not engage corporation or other entity that would result in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any PersonMaterial Adverse Effect; (vi) cancel or compromise any debt or claim, claim or waive or release any material right of the Company Seller that constitutes a Purchased Asset except in the Ordinary Course of Business; (vii) enter into any commitment for capital expenditures in excess of $10,000 for any individual commitment and $50,000 for all commitments in the aggregate; (viii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementorganization; or (xviiix) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company7.2.

Conduct of the Business Pending the Closing. The Sellers agree that, during the period from the date of this Agreement until the earlier of the Closing or the termination of this Agreement pursuant to its terms, except as (a) Except as otherwise expressly provided set forth on Schedule 6.2, (b) may be authorized by this Agreement or with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingconditioned or delayed), or (c) may otherwise be contemplated by this Agreement, the Company shall: Sellers shall (i) conduct the Business only in the Ordinary Course of Business; , (ii) comply in all material respects with applicable Laws and (iii) use its their commercially reasonable efforts to (A) preserve the present business operationsmaterial Transferred Assets (subject to any dispositions of inventory, organization (including officers collection of accounts receivable, realization of prepaid expenses and Employees) and goodwill full performance or other expiration of Contracts, in each case, in the Company and Ordinary Course of Business), (B) preserve the present relationships maintain their existing relations and goodwill with Persons customers, suppliers, distributors and others having business dealings with the Company and (including customers C) keep available the services of the Key Employees. Without limiting the generality of the foregoing, and suppliersas an extension thereof, the Company and, solely with respect to the following clauses (g), (i) and (r), Paddock Properties shall not, and shall not permit the Subsidiary to, directly or indirectly, do, agree or commit to do, or authorize any of the following: (a) authorize, adopt or effect any change in its articles of incorporation, by-laws, limited liability company agreement or other organizational documents; (iiib) maintain make any change in its authorized or issued capital stock or other equity interests or, directly or indirectly, acquire, redeem, issue, deliver, encumber, sell or otherwise dispose of any of its capital stock or other equity interests or securities convertible into, or exercisable or exchangeable for, any of its capital stock or other equity interests or authorize any such action; (Ac) all split, combine or reclassify any of the assets and properties its capital stock or other equity interests or issue any other security in respect of, in lieu of or used byin substitution for shares of its capital stock or other equity interests; (d) declare, the Company consistent with past practiceset aside, and make or pay any dividend or other distribution payable in property or other in kind consideration, in respect of its capital stock or other equity interests; (Be) insurance upon all issue any note, bond, or other debt security or create, incur, assume, or guarantee any Liabilities, other than Liabilities under Material Contracts in existence as of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (Df) make any loans, advances of or capital contributions to, or investments in, any Person, other Personthan any loans or advances that will be repaid prior to or at the Closing; (iiig) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assigntransfer, lease, license, transfer, convey, lease pledge or encumber or otherwise dispose of any material Transferred Asset (including by merger, consolidation, asset sale, formation of a joint venture or other business combination), except (i) pursuant to Contracts in existence as of the Purchased Assets date of this Agreement or (except for fair consideration in the Ordinary Course ii) sales of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except inventory in the Ordinary Course of Business; (viih) enter into, adversely modify or terminate any labor amend or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Businessaffirmatively terminate, or the ability of Newco waive, release or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive assign any rights under or claims under, any (A) Material Contract, Real Property Leaseexcept (i) as may be required by Law or by such Material Contract, Personal Property Lease or Intellectual Property License, other than (ii) in the Ordinary Course of Business or (Biii) Permitany Material Contract that is an Excluded Asset; or enter into any other Contract that, if existing on the date of this Agreement, would be a Material Contract, other than Contracts with customers that generate revenues for the Business and other than Contracts that are Excluded Assets; (xiii) settle demolish or compromise any pending or threatened Legal Proceeding materially alter the Facility or any claim real property that is the subject of a Company Lease; (j) cancel, compromise or claims forsettle any material claim, or waive or release any material rights of the Company or the Subsidiary; (k) except as required to maintain qualification pursuant to the Code or as required by Law or by the terms of any Company Benefit Plan, adopt, enter into, amend, alter or terminate any Company Benefit Plan (including any award issued thereunder), fund or in any other way secure any payment of compensation or benefits under any Contract or Company Benefit Plan, or exercise any discretion to accelerate the vesting or payment of any compensation or benefit under any Contract or Company Benefit Plan; (l) grant or agree to grant any increase in the wages, salary, bonus opportunities or other compensation, remuneration or benefits (including severance or termination pay) of any employee, officer, consultant, independent contractor, manager or director of the Company, other than (a) pursuant to Material Contracts in existence as of the date of this Agreement or (b) pursuant to the existing terms of a Company Benefit Plan; or take any action that would constitute a “mass lay-off,” a “mass termination,” or a “plant closing,” or that would result otherwise trigger notice requirements under any applicable Law concerning reductions in force, such as the WARN Act or any similar Law in any applicable jurisdiction; (m) acquire (by merger, consolidation, formation of a loss joint venture, acquisition of revenue ofstock or assets or other business combination) any corporation, an amount that couldpartnership or other business organization or division thereof, all or substantially all of the assets of a business or business unit, or a collection of any material portion of the assets of any Person, or merge or consolidate with any Person; (n) make any material change in any method of accounting or accounting practice policy, other than as required by applicable Law or by a change in GAAP; (o) make or change any material Tax election, change in any material respect its method of Tax accounting or settle any material claim relating to Taxes; (p) make, or commit to make, capital expenditures that, in the aggregate, exceed $2,000,000, other than pursuant to Material Contracts in existence as of the date of this Agreement; (q) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or the Subsidiary, or enter into a letter of intent or agreement in principle with respect thereto, other than pursuant to Material Contracts in existence as of the date of this Agreement; (r) take or fail to take any action that, individually or in the aggregate, would reasonably be expected to be greater than $50,000; (xiii) change result in, a Material Adverse Effect or modify its credit, collection constitute a willful breach of any representation or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability warranty of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSellers made herein; or (xviis) authorize, agree or otherwise commit to do anything (A) prohibited by this Section 6.2, (B) that would make take any of the representations and warranties of actions prohibited by the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or foregoing clauses (Ca) that could be reasonably expected to have a Material Adverse Effect with respect to the Companythrough (r).

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Seller shall, and shall cause the Company shall:and its Subsidiaries to, (i) conduct the Business business of the Company and its Subsidiaries only in the Ordinary Course of Business; (ii) ordinary course consistent with past practice and to use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and Company, (B) preserve the its present relationships relationship with Persons having business dealings with the Company and its Subsidiaries, and (including customers and suppliers); (iiiC) maintain (A) all of the assets and properties of, or used by, the Company Properties and all buildings, structures, fixtures and improvements thereon in the same condition as they exist on the date hereof, ordinary wear and tear excepted, in each case consistent with past practice, and ; (Bii) insurance upon all of use commercially reasonable efforts to maintain the assets and properties of the Company and its Subsidiaries in such amounts customary repair, order and of such kinds condition, maintain insurance reasonably comparable to that in effect on the date Balance Sheet Date and, in the event of this Agreement; (iv) (A) maintain a casualty, loss or damage to any of such assets prior to the books, accounts and records of Closing Date for which the Company in and its Subsidiaries is the Ordinary Course beneficiary of Businessinsurance or the condemnation of any such assets, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on either repair or replace such assets or, if the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting Purchaser agrees, retain such insurance or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapsecondemnation proceeds; and (viiiiii) pay all maintenance if, to the Seller's best knowledge, any material variances from the representations and similar fees and take all other appropriate actions as necessary to prevent warranties contained in Article IV arise or occur, promptly inform the abandonment, loss or impairment Purchaser of all Intellectual Property of the Companyany such material variances. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Seller shall not, and shall cause the Company and each of its Subsidiaries not to: (i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company and its Subsidiaries or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company and its Subsidiaries; (ii) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company and its Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company and its Subsidiaries; (iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company and its Subsidiaries; (iv) amend the articles of incorporation or by-laws of the Company and its Subsidiaries; (A) grant any increase in the salary or other compensation of any director of the directors, officers, or Employee Key Employees of the Company except for normal year-end increases or any of its Subsidiaries or make any general uniform increase in the Ordinary Course compensation of Businessthe employees of the Company or any of its Subsidiaries outside the ordinary course of business consistent with past practice, (B) grant any extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant of the Company or any of its Subsidiaries, or (C) increase the coverage or benefits available under enter into any (or create any new) severance payseverance, termination paytermination, vacation pay, company awards, salary continuation for disability, sick leaveretention, deferred compensation, bonus or other incentive compensation, insuranceprofit sharing, pension stock option, stock appreciation right, restricted stock, stock equivalent, stock purchase, pension, retirement, medical, hospitalization, life or other insurance or other employee benefit plan or arrangement made to, for, or with any for the benefit of the officers, directors, officers, Employees, agents or representatives and/or employees of the Company or otherwise modify or amend or terminate any such plan or arrangement of its Subsidiaries; (Dvi) enter into any employmentexcept for trade payables and under lines of credit existing on the date hereof, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units Company or other equity interests any of its Subsidiaries, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the Company; (ii) (A) createguarantor, incursurety, assume, guarantee, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iiivii) except under lines of credit existing on the date hereof, and consistent with past practice, subject any of the properties or assets of the Company and its Subsidiaries to any Lien or otherwise encumber or, except for (other than Permitted Exceptions); (viii) purchase, permitsell, allow lease, transfer or suffer to be subjected to any Lien or otherwise encumbered, assign any of the Purchased Assets; Company's and its Subsidiaries' assets, tangible or intangible, involving more than $100,000 for any single purchase, sale, lease, transfer or assignment (ivor agreement related to the foregoing) acquire any material properties or assets $500,000 for a series of such related purchases, sales leases, transfers or sell, assign, license, transfer, convey, lease assignments (or otherwise dispose of any of agreement related to the Purchased Assets foregoing) except (except A) for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, (B) dispositions of assets no longer useful to the conduct of the business of the Company and its Subsidiaries, consistent with past practice, and (C) dispositions (other than as part of an engine overhaul or repair) of inventory covered by the Company's slow-moving inventory reserve in an amount not resulting in aggregate sale proceeds in excess of $300,000; (vix) cancel or compromise any material debt or claim or waive or release any material right of the Company or its Subsidiaries except as provided in Section 6.6 hereofthe ordinary course of business consistent with past practice; (x) with respect to the Company or any of its Subsidiaries, enter into any commitment for capital expenditures in excess of $100,000 for any individual commitment and $250,000 for all commitments in the aggregate; (A) enter into any employment contract (pursuant to which the Company or any of its Subsidiaries may reasonably be expected to make payment in excess of $50,000 in any twelve month period) or (B) enter into any labor or collective bargaining agreement, oral or written, or make any material modification of the terms of any existing such contract or agreement, or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to, or materially reduce the workforce of, the Company and its Subsidiaries; (xii) with respect to the Company or any of its Subsidiaries, enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change with respect to the Company or any of its Subsidiaries, and except for transfers of cash pursuant to normal cash management practices, make any investments in or loans to, or except in accordance with past practices, pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesthe Seller; (xiv) take with respect to the Company or any action which would adversely of its Subsidiaries, make or change any election concerning Taxes or Tax Returns, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settled any Tax claim or assessment or surrender any right to claim a refund of Taxes or obtain or enter into any Tax ruling, agreement, contract, understanding, arrangement or plan, in each case that will be binding on or affect the ability Purchaser, the Company or any of its Subsidiaries for any period after the parties to consummate the transactions contemplated by this AgreementClosing Date; (xv) amend with respect to the operating agreement Company or any of its Subsidiaries, enter into any contract, lease, sublease, license or sublicense (or series of related contracts, leases, subleases, licenses and sublicenses) involving more than $50,000 except those entered into in the Companyordinary course of business consistent with past practice; (xvi) agree with respect to materially increase Liabilities from the amounts set forth on the Balance Sheet Company or any of its Subsidiaries, accelerate, terminate, modify or cancel any contract, lease, sublease, license or sublicense (or series of related contracts, leases, subleases, licenses and sublicenses) involving more than $50,000 except in the Ordinary Course ordinary course of Business under loan or credit agreements or arrangements up business consistent with past practice; (xvii) with respect to the maximum amounts Company or any of its Subsidiaries, (A) make any capital investment in, any loan to, or any acquisition of the securities of another Person (or series of related capital investments, loans and acquisitions) involving more than $50,000 except in the ordinary course of business consistent with past practice or (B) make any pledge to make such a capital contribution; (xviii) with respect to the Company or any of its Subsidiaries, grant a license or sublicense of any rights under or with respect to any intellectual property; (xix) make any loan to, or enter into any transaction with, any of the directors, officers, or employees of the Company or any of its Subsidiaries outside the ordinary course of business; (xx) make any other material change in employment terms as in effect on for any of the date directors or officers of this Agreementthe Company or any of its Subsidiaries or the Key Employees; or (xviixxi) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyrespect.

Conduct of the Business Pending the Closing. From the date hereof until the Closing, except (i) as expressly required by this Agreement, (ii) for any actions set forth in Section 5.2 of the Disclosure Schedule, (iii) for actions taken to implement or give effect to the Step Plan in compliance with the terms and conditions of this Agreement, (iv) as otherwise consented to by Buyer in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or (v) as is required to comply with applicable Law, Parent shall cause each of the following to occur: (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, between the date hereof The Companies and the Closing, Subsidiaries will operate their business in the Company shall: ordinary course of business on a basis consistent with past practice and (x) use their reasonable best efforts to (i) conduct preserve intact their present business organization, (ii) maintain in effect all of their foreign, federal, state and local Permits, (iii) keep available the Business only services of their directors, officers and employees including maintaining applicable visas where necessary, (iv) maintain satisfactory relationships with their customers, lenders, suppliers and others with which they have material business relationships, (v) maintain satisfactory relationships with relevant trade unions and other employee representative groups, (vi) manage their working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the Ordinary Course ordinary course of business consistent with past practice and (vi) manage their contractual obligations (including the timing of performance of such contractual obligations by the Companies and Subsidiaries and counterparties thereto) in the ordinary course of business consistent with past practice and (y) maintain the Company Facilities and make capital expenditures in the ordinary course of business consistent with past practices taking into account the performance of the Business; (iib) use its commercially reasonable efforts to The Companies and the Subsidiaries shall not amend their articles of incorporation, bylaws or other similar organizational documents (A) preserve the present business operationswhether by merger, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliersconsolidation or otherwise); (iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (I) as set forth on Schedule 8.2(a), (II) as required by applicable Law, (III) as otherwise expressly provided contemplated by this Agreement (including the Reorganization) or (IV) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company shall, and shall cause the Subsidiaries to: (i) conduct the Business respective businesses of the Company and the Subsidiaries only in the Ordinary Course of Business; (ii) use its commercially reasonable efforts Commercially Reasonable Efforts to (A) preserve the present business operations, organization (including officers and Employees) organization, assets, properties and goodwill of the Company and the Subsidiaries, and (B) preserve the present relationships with Persons having business dealings customers and suppliers of the Company and the Subsidiaries; (iii) in its sole discretion, either (A) sell all of the issued and outstanding equity interests of any of the FirstLight Entities (collectively, the “FirstLight Equity”) held indirectly by the Company to an Approved Purchaser and thereafter transfer to any member of the Seller Group any remaining FirstLight Equity held indirectly by the Company after giving effect to such sale or (B) transfer all of the FirstLight Equity to any member of the Seller Group (clause (A) or (B), respectively, the “FirstLight Transfer”); and (iv) use its Commercially Reasonable Efforts to proceed in accordance with the Company Company’s historical timeline and practice in the preparation of (A) audited or unaudited, as applicable, financial statements of the Business (including customers combined balance sheets, statements of operations, statements of cash flows and suppliersstatements of stockholders equity (if applicable)), for any fiscal year or quarter that has ended prior to the Closing (such financial statements to have been prepared in accordance with GAAP and, with respect to unaudited financial statements, reviewed by the independent accountants for the Business as provided in the procedures specified by the Public Company Accounting Oversight Board in AU 722) and (B) the information required by Item 303 Management’s Discussion and Analysis of Financial Condition and Results of Operations of Regulation S-K with respect to any period for which financial statements are prepared pursuant to clause (A) of this clause (iv); provided that notwithstanding anything in this Agreement to the contrary, this Section 8.2(a)(iv) shall not be included for purposes of the condition set forth in Section 9.1(b). (b) Prior to Closing, except (I) as set forth on Schedule 8.2(b), (II) as required by applicable Law, (III) as otherwise contemplated by this Agreement (including the Reorganization), (IV) as contemplated by the FirstLight Transfer, or (V) with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), Seller (solely with respect to Section 8.2(b)(xvi)) and the Company shall not, and shall not permit the Subsidiaries to: (i) transfer, issue, sell or dispose of any shares of capital stock or other securities of the Company or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of the Subsidiaries; (ii) effectuate any recapitalization, reclassification or like change in the capitalization of the Company or any of the Subsidiaries (other than any redemption or retirement of any shares of capital stock of the Company or any other recapitalization of the Company in connection with the repayment of Indebtedness to any member of the Seller Group); (iii) maintain (A) all of the assets and properties ofliquidate, dissolve or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementotherwise wind up its business or operations; (iv) (A) maintain amend the books, accounts and records certificate of incorporation or bylaws or comparable organizational documents of the Company in or any of the Ordinary Course of Business, Subsidiaries; (Bv) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet than in the Ordinary Course of Business utilizing normal procedures and without discounting (except with respect to clause (D)), as required by Law or accelerating payment Contract, or pursuant to the terms of such accounts any Company Benefit Plan, (A) materially increase the annual level of base compensation payable or Liabilities utilizing all available cash and to become payable to any available line of creditdirector, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan executive officer, employee or independent contractor of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property any of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessSubsidiaries, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) materially increase the coverage or benefits available under any Company Benefit Plan, (C) hire any individual to be employed by the Company or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus Subsidiary as an executive officer or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with terminate the employment of any of the directors, officers, Employees, agents or representatives executive officer of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employmentSubsidiary, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make loan or advance any loansmoney or other property to any present or former director, advances officer or employee of capital contributions to, the Company or investments in, any other PersonSubsidiary; (iiivi) subject any of the properties or assets (whether tangible or intangible) of the Company or any of the Subsidiaries to any Lien or otherwise encumber orLien, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (ivvii) enter into, assume, terminate, assign, partially or completely amend, grant any waiver of any material term under or grant any material consent with respect to, any Material Contract or Contract that would be a Material Contract if in existence on the date hereof; (viii) acquire any material individual properties or assets in excess of $5,000,000 or sell, assign, license, transfer, convey, lease or otherwise dispose of any individual properties or assets in excess of $5,000,000, except (A) pursuant to an existing Contract for fair consideration, (B) as may be reasonably required to conduct emergency operations, repairs or replacements with respect to any asset of the Purchased Assets Business or (except C) for fair consideration fuel purchases for the Company’s assets made in the Ordinary Course of Business) of the Company; (vix) purchase any equity interests of any Person; (x) other than Indebtedness solely among the Company Group, create, incur, assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness; (xi) make any loans to any Affiliate of the Company (other than any Subsidiary) that are not paid off or otherwise discharged at or prior to Closing; (xii) other than in the Ordinary Course of Business, cancel or compromise any material debt or claim or waive or release any material right of the Company or any of the Subsidiaries; (xiii) enter into any commitment(s) that would obligate the Company Group to incur capital expenditures in any calendar year in excess of 110% of the amount budgeted for capital expenditures in the aggregate for the Business in such calendar year in the proposed capital expenditures budget set forth on Schedule 8.2(b)(xiii), except as provided in Section 6.6 hereofmay be reasonably required to conduct emergency operations, repairs or replacements with respect to any asset of the Business; (xiv) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any of the Subsidiaries; (xv) permit the Company or any of the Subsidiaries to enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vixvi) cancel settle, compromise or discharge any pending or threatened Legal Proceeding (other than any Excluded Legal Proceeding or any Legal Proceeding related to property Taxes) unless the settlement, compromise or discharge of such Legal Proceeding (i) does not materially restrict any debt or claim, or waive or release any material right of the Company or any Subsidiary from competing or engaging in the activity or businesses in which they currently engage and (ii) involves payment of monetary damages not in excess of $2,500,000 individually or $5,000,000 in the aggregate; provided, however, Seller (together with its Affiliates, including the Company) shall have the exclusive right to defend against, negotiate, settle, compromise, discharge or otherwise deal with the Excluded Legal Proceedings in its sole discretion; provided, further, that, without Purchaser’s prior written consent, Seller and its Affiliates shall not enter into any such settlement, compromise or discharge (A) that results in any Lien on any of the assets of, or contains any restriction or condition that would adversely affect, except in any immaterial respect, the Ordinary Course future conduct of, any member of Businessthe Company Group or the Business or (B) would require any member of the Company Group to pay any amount with respect thereto. (xvii) make or rescind any material election relating to Taxes or, except as required by applicable Law or GAAP, make any material change to any of its methods of Tax accounting or methods of reporting income or deductions for Tax; (viixviii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment changes in financial accounting methods, principles or incur any Liability to any labor organization with respect to any Employeepractices (or change an annual accounting period), except insofar as may be required by a change in GAAP or applicable Law; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ixxix) enter into or modify in any transaction material respect, terminate, cancel, renew or enter into, modify or renew assign any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability material Permit of the Business, Company or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property LicenseSubsidiaries, other than in the Ordinary Course of Business or (B) Permit; (xii) settle other than any such Permit that will expire or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result be satisfied in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up full prior to the maximum amounts and other terms as in effect on the date of this AgreementClosing; or (xviixx) agree to do anything (A) prohibited by this Section 6.28.2. (c) Notwithstanding anything contained in this Section 8.2 to the contrary and except as set forth on Schedule 8.2(c), (B) that would make any of from the representations and warranties date hereof until the Closing Date, the Company Group shall enter into Hedge Contracts to hedge risk of the Company Group (which Hedge Contracts will be subject to the entry into a Back-to-Back Trade on the Closing Date in this Agreement accordance with Section 8.14) with a maturity date, settlement date, final delivery date or any scheduled termination date later than September 30, 2016 only upon the request of the Purchaser, and then only in accordance with the Company Documents untrue or incorrect in any material respect or could result in any Group’s policies and procedures, including risk policies. For the avoidance of doubt, products subject to periodic auctions, including forward capacity Contracts and congestion revenue rights, shall not be considered Hedge Contracts for purposes of the conditions to restriction set forth in the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyimmediately preceding sentence.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingParent, the Company Seller shall: (i) conduct the Business its business only in the Ordinary Course of Businessordinary course consistent with past practice; (ii) use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company and (B) preserve the its present relationships relationship with Persons persons having business dealings with the Company (including customers and suppliers)it; (iii) maintain (A) all of the its assets and properties ofin their current condition, or used by, the Company consistent with past practice, ordinary wear and tear excepted and (B) insurance upon all of the its properties and assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the its books, accounts and records of the Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of the Company;applicable to its operation; and (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Parent, the Company Seller shall not: (i) except for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (Acontingent or otherwise) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companyperson; (ii) subject to any Lien (A) createexcept for liens that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), incur, assume, guarantee, endorse any of its properties or otherwise become liable or responsible with respect to assets (whether directly, contingently tangible or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personintangible); (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets its material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice); (iv) cancel or compromise any debt or claim or waive or release any material right except in the ordinary course of the Companybusiness consistent with past practice; (v) except as provided enter into any commitment for capital expenditures in Section 6.6 hereofexcess of $10,000 for any individual commitment and $25,000 for all commitments in the aggregate; (vi) introduce any material change with respect to its operation, including any material change in the types, nature, composition or quality of its products or services, experience any material change in any contribution of its product lines to its revenues or net income, or, other than in the ordinary course of business, make any change in product specifications or prices or terms of distributions of such products; (vii) enter into any transaction or make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice; (viii) enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such productsperson; (ix) except for transfers of cash pursuant to normal cash management practices, make any investments in or loans to, or pay any fees or expenses to, or enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementcontract with any Affiliate; or (xviix) agree to do anything (A) prohibited by this Section 6.2, (B) that 5.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of the conditions to time through and including the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyDate.

Conduct of the Business Pending the Closing. Until the Closing or the termination of this Agreement, except as otherwise set forth in Schedule 5.2 or contemplated by this Agreement, Auric shall comply with the provisions set forth below: (a) Except as otherwise expressly provided by this Agreement or with Auric shall operate the prior written consent of Newco, between the date hereof and the Closing, the Company shall: (i) conduct the Business only business in the Ordinary Course of Businessordinary course; (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting Auric shall not grant any general increase in the generality rates of salaries or compensation of its employees or any specific increase to any employee except such as are in accordance with regularly scheduled periodic increases; (c) Except as provided for under the foregoingexisting Benefit Plans, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company Auric shall not: not (i) grant or agree to grant any bonuses to any employee, or (Aii) increase the salary provide for any new pension, retirement or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation employment benefits to any Employee of its employees or director, (C) any increase the coverage or benefits available under in any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companyexisting benefits; (iid) (A) create, incur, assume, guarantee, endorse Auric shall not amend its Certificate of Incorporation or otherwise become liable Bylaws or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Personagreement; (e) Auric shall use commercially reasonable efforts to maintain and preserve in all material respects its business, and to maintain its existing relationships with customers, suppliers, employees and other business associates; (f) Other than in the ordinary course of business, Auric shall not engage sell, assign, voluntarily encumber, grant a security interest in any new business or invest in, make a loan, advance or capital contribution license with respect to, or otherwise acquire the securities dispose of, any of any Person; (vi) cancel its material assets or compromise any debt properties tangible or claimintangible in excess of $100,000, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xivg) take Auric shall maintain in full force and effect all insurance currently maintained by Auric; and (h) No Benefit Plan, nor any trust established thereunder, shall be amended or terminated by formal action which would adversely affect of Auric after the ability date copies thereof are disclosed, and no Benefit Plan or trust relating thereto shall be amended or terminated by formal action of Auric prior to the parties Effective Date, except as an amendment may be necessary to consummate effect the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except Agreement so long as any such amendment does not adversely affect Auric's interests in the Ordinary Course of Business under loan Benefit Plan being amended, or credit agreements or arrangements up as may be adopted as a condition to the maximum amounts issuance of a favorable determination letter by the IRS, or as otherwise may be required to comply with the requirements of ERISA and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyCode.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (1) as otherwise expressly provided contemplated by this Agreement or (2) with the prior written consent of NewcoPurchasers (which consent shall not be unreasonably withheld or delayed) or (3) as may be required to comply with the debtor in possession budget agreed upon in connection with the debtor in possession credit facility as such budget may be amended from time to time with the consent of the Purchasers (provided, between however, that Purchasers shall not unreasonably withhold or delay their consent to such amendment) (the date hereof and the Closing"DIP Budget"), the Company Sellers shall: (i) operate the Business in a manner consistent with the DIP Budget; (ii) maintain all of the Purchased Assets in good repair, condition and working order, reasonable wear and tear excepted, for the uses in which they are currently used in the Business; (iii) maintain in full force and effect all policies of insurance covering the Business and the Purchased Assets; (iv) conduct the Business only in the Ordinary Course of Business;; and (iiv) use its commercially their reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Business, and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) all suppliers of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting Except (1) as may be required by the generality of the foregoingDIP Budget, except (2) as otherwise expressly provided contemplated by this Agreement or (3) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld or delayed), solely as it relates to the Company Business, Sellers shall not: (i) (A) materially increase the salary or other annual level of compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Businessemployee, (B) increase the annual level of compensation payable or to become payable by any Seller to any of its respective executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus Employee Benefit Plan or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (DE) enter into or amend any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company any Seller is a party; party or (E) pay involving a director, officer or make employee of any dividend Seller in his or distribution her capacity as a director, officer or employee of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) createsuch Seller, incurexcept, assumein each case, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy as required by applicable Law from time to time in effect or by any Indebtedness issued of the Employee Benefit Plans or guaranteed by the Company; Pension Plans; (C) materially modify the terms of any Indebtedness or other Liability; or (Dii) make any loans, advances material change to any of capital contributions to, or investments in, any other Persontheir methods of accounting unless required by GAAP; (iii) subject acquire or agree to acquire any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsbusiness; (iv) acquire any material properties or assets or sellsell (including by sale-leaseback), assign, licenselease, transfer, conveylicense (whether on an exclusive or non-exclusive basis), lease mortgage or otherwise dispose of of, encumber or subject to any of the Lien, any Purchased Assets (except for fair consideration or interests therein, other than sales of Inventory in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereofsell, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution totransfer, or otherwise acquire the securities dispose of, encumber or subject to any Lien, any capital stock of any or interest in any Person; (vi) cancel commence or compromise continue any debt "going out of business" or claiminventory liquidation sales or offer any discounted sales of Inventory, other than quantity discounts heretofore offered by Sellers in the usual, regular and Ordinary Course of Business, consistent with past practice; (vii) enter into any contract, license or other agreement that contains any provision that, as a result of the consummation of the transactions contemplated by this Agreement or the Ancillary Agreements, would (assuming that the other party's consent or approval is not obtained, to the extent required) result in any penalty, additional payments or forfeiture that would be payable on or after the Closing Date; (viii) modify, amend or supplement any Purchased Contracts, or waive terminate any Purchased Contracts except in accordance with the terms thereof; (ix) make any single new commitment or release related series of commitments or increase any material right single previous commitment or related series of commitments for capital expenditures for the Business in an amount exceeding fifty thousand dollars ($50,000) nor make any commitments or increase any previous commitments for capital expenditures for the Business in an amount exceeding fifty thousand dollars ($50,000) in the aggregate; (x) accelerate or delay the sale of the Company goods or services of the Business, except as may be necessary in the Ordinary Course of Business; (xi) sell, assign, transfer, license, abandon or convey any Purchased Intellectual Property except in the Ordinary Course of Business; (viixii) enter intoexcept as would not adversely affect Purchasers, modify or terminate any labor or collective bargaining agreement orthe Business and the Purchased Assets, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce settle any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000regarding Taxes; (xiii) change perform any act which would cause any representation, warranty, covenant, condition or modify its creditagreement of Sellers in this Agreement or the Ancillary Agreements to be or become untrue in any respect or intentionally omit to take any action necessary to prevent any such representation, collection warranty, covenant, condition or payment policiesagreement from being or becoming untrue in any respect, procedures or practicesand will comply in all respects with all Laws applicable to the Business, including acceleration the Purchased Assets and all of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesthe Permits; (xiv) take waive or compromise any action which would adversely affect the ability of the parties material claim or right or fail to consummate the transactions contemplated by this Agreement;renew any Permit; and (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2, 8.2. (Bc) that Sellers will promptly notify Purchasers in writing of (i) any event known to Sellers which would make render any representation or warranty of the representations and warranties of the Company Sellers contained in this Agreement or any Ancillary Agreement, if made on or as of the Company Documents date of such event or the Closing Date, untrue or incorrect in inaccurate, (ii) any material respect change, condition or event that has or could result in any of the conditions to the Closing not being satisfied or (C) that could reasonably be reasonably expected to have a Material Adverse Effect or (iii) any failure of Sellers to comply with respect or satisfy any covenant, condition or agreement to be complied with or satisfied hereunder. Notwithstanding the Companydisclosure to Purchasers of any matter pursuant to this Section 8.2(c), Sellers shall not be relieved of any Liability for, nor shall the provision of such information by Sellers to Purchasers be deemed a waiver of, the breach of any representation, warranty, covenant, condition or agreement of Sellers contained in this Agreement or any Ancillary Agreement.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Sellers shall, and shall cause the Company shallto: (i) conduct the Business businesses of the Company only in the Ordinary Course of Businessordinary course consistent with past practice; (ii) use its commercially reasonable efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company including, but not limited to all Company Intellectual Property and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers and suppliers)Company; (iii) maintain (A) all of the assets and properties of, or used by, of the Company consistent with past practicein their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (A) maintain the books, accounts and records of the Company in the ordinary course of business consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company; (v) comply in all material respects with applicable laws, including, without limitation, Environmental Laws; and (vi) Shall not enter into a material agreement including, but not limited to, any asset acquisition, purchase or disposition or any financing arrangement whether debt and/or equity. (b) Except as otherwise expressly contemplated by this Agreement or with the prior written consent of the Sellers, the Purchaser shall: (i) conduct the businesses of the Purchaser only in the ordinary course consistent with past practice; (ii) (A) preserve its present business operations, organization (including, without limitation, management and the sales force) and goodwill of the Purchaser including, but not limited to all Company Intellectual Property and (B) preserve its present relationship with Persons having business dealings with the Purchaser; (iii) maintain (A) all of the assets and properties of the Company Purchaser in their current condition, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of the Purchaser in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company Purchaser in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the CompanyPurchaser; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viiivi) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonmentShall not enter into a material agreement including, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made but not limited to, forany asset acquisition, purchase or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding disposition or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (financing arrangement whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companydebt and/or equity.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 8.2(a), (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the Company shall, and shall cause its Subsidiaries to: (i) conduct the Business respective businesses of the Company and its Subsidiaries only in the Ordinary Course of Business;; and (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and its Subsidiaries, and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties suppliers of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Companyits Subsidiaries. (b) Without limiting the generality of the foregoingExcept (i) as set forth on Schedule 8.2(b), except (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement or (iv) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, delayed or conditioned), the Company shall not, and shall not permit its Subsidiaries to: (i) repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of its Subsidiaries; (ii) issue or sell any shares of capital stock or other securities of the Company or any of its Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company or any of its Subsidiaries; (iii) effect any recapitalization, reclassification or like change in the capitalization of the Company or any of its Subsidiaries; (iv) amend the organizational documents of the Company or any of its Subsidiaries; (A) materially increase the salary or other annual level of compensation of any director or Employee executive officer of the Company except for normal year-end increases in the Ordinary Course or any of Businessits Subsidiaries, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee director or directorexecutive officer, (C) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives employees of the Company or any of its Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or any of its Subsidiaries is a party; party or (E) pay or make involving any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the Company; (ii) (A) createCompany or any of its Subsidiaries, incurexcept, assumein each case, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed as required by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonCompany Benefit Plans; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (ivvi) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets of the Company or any of its Subsidiaries (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business) Business or for the purpose of the Companydisposing of obsolete or worthless assets); (vvii) except as provided other than in Section 6.6 hereofthe Ordinary Course of Business, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any material debt or claim, claim or waive or release any material right of the Company except in the Ordinary Course or any of Businessits Subsidiaries; (viiviii) except as provided for in the Company's annual budget for the 2005 fiscal year (a copy of which has been delivered to the Purchaser), enter into any commitment for capital expenditures of the Company and its Subsidiaries in excess of $100,000, or its equivalent in Rupees or other currencies, for any individual commitment and $500,000, or its equivalent in Rupees or other currencies, for all commitments in the aggregate; (ix) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation negotiations or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Businessorganizations; (x) enter into or agree to enter into any Contract, understanding merger or commitment that restrains, restricts, limits consolidation with any corporation or impedes the ability of the Businessother entity, or acquire the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment securities of any personsother Person; (xi) terminate, amend, restate, supplement enter into or waive modify any rights under Contract with the Seller or any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in Affiliate of the Ordinary Course of Business or (B) PermitSeller; (xii) except to the extent consistent with past practice or as otherwise required by Law, make or rescind any material election relating to Taxes, settle or otherwise compromise any pending claim, investigation, audit or threatened Legal Proceeding or any claim or claims for, or that would result in controversy relating to a loss material amount of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000Taxes; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts extent required by Law or Indian GAAP or International Accounting Standards, as applicable, make any material change to any of its methods of accounting or methods of reporting revenue and other terms as in effect on the date of this Agreementexpenses or accounting practices; or (xviixiv) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company8.2.

Conduct of the Business Pending the Closing. Except (aA) Except as required by applicable Law, (B) as otherwise expressly provided contemplated by this Agreement Agreement, or (C) with the prior written consent of Newcothe Purchaser (which consent may be withheld, between delayed or conditioned): (a) the Company shall, from the date hereof and prior to the Closing, the Company shallClosing Date: (i) conduct the Business only its respective businesses in the Ordinary Course of BusinessBusiness including the maintenance of all records; (ii) use its commercially reasonable best efforts to (A) preserve the present business operations, organization (including officers and Employees) operations and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)its business; (iii) maintain (A) all confer with Purchaser prior to implementing operation decisions of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementa material nature; (iv) (A) maintain report to Purchaser at such times as Purchaser may reasonably request concerning the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations status of the Company; (v) comply maintain the assets owned or used by the Company in a state of repair and conditions that complies with the capital expenditure plan Company’s Contracts and is consistent with the requirements and normal conduct of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such planCompany; (vi) comply in all material respects with all applicable LawsContracts of the Company; (vii) take steps to renew continue in full force and effect all Permits in a timely manner prior to their lapseinsurance coverage of the Company; and (viii) pay all maintenance and similar fees and take all other appropriate actions no action, or fail to take any reasonable action within its control, as necessary to prevent the abandonment, loss or impairment a result of all Intellectual Property which any of the Companychanges or events listed in Section 4.9 would be likely to occur. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not, from the date hereof prior to the Closing Date: (i) amend any of its organizational documents; (Aii) increase the salary declare, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock (or other compensation equity interest) of the Company; (iii) repurchase, redeem or acquire any director outstanding shares of capital stock (or Employee other equity interest) or other securities of, or other ownership interest in, the Company; (iv) award or pay any bonuses to any physicians who provide services, professional or otherwise, on behalf of the Company except for normal year-end increases in the Ordinary Course of Business(collectively, “Physicians”) or any persons (Bother than Physicians) grant any bonuswho are employees, benefit independent contractors or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any consultants of the directors, officers, Employees, agents or representatives Business as of the Company or otherwise modify or amend or terminate any such plan or arrangement date hereof (Dcollectively, the “Business Employees”), ; (v) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition severance or similar agreement or arrangement with any directors or officers of the Company (or amend nor amended any such agreement) or agree to which increase the Company is a party; compensation payable or (E) pay or make to become payable by it to any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company’s directors, officers, employees, agents or representatives or agree to increase the coverage or benefits available under the Company Benefit Plan (as defined in Section 4.12(a)); (iivi) change its accounting or Tax reporting principles, methods or policies; (Avii) createmake or rescind any election relating to Taxes, incur, assume, guarantee, endorse settled or otherwise become liable or responsible with respect compromised any claim relating to Taxes; (whether directly, contingently or otherwiseviii) any Indebtedness fail to promptly pay and discharge current Liabilities except where disputed in good faith by appropriate proceedings; (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (Dix) make any loans, advances of or capital contributions to, or investments in, any other Person; (iii) subject Person or paid any fees or expenses to any Lien director, officer, partner, stockholder or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of BusinessAffiliate; (x) enter into mortgage, pledge or subject to any ContractLien any of its assets, understanding properties or commitment that restrains, restricts, limits or impedes the ability of rights relating to the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement enter into or waive amend any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle make or compromise commit to make any pending or threatened Legal Proceeding or any claim or claims for, or that would result capital expenditures in a loss excess of revenue of, an amount that could, $10,000 individually or $25,000 in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change issue, create, incur, assume or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesguarantee any Indebtedness; (xiv) take suffer any action which would adversely affect material change in the ability productivity or compensation of the parties to consummate the transactions contemplated by this AgreementPhysicians; (xv) amend the operating agreement of the Companyinstitute or settle any Legal Proceeding without Purchaser’s written consent; (xvi) agree to materially increase Liabilities from borrow any amount, take out any Loans, guarantee any Loans of any Person or become the amounts set forth on the Balance Sheet except in the Ordinary Course transferee or assignee of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementany Loans; or (xviixvi) agree agree, commit, arrange or enter into any agreement to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyforegoing.

Conduct of the Business Pending the Closing. Seller hereby covenants that, from the date hereof to and including the Closing Date, unless Purchaser shall otherwise agree (which agreement shall not be unreasonably withheld) or as otherwise contemplated by this Agreement: (a) Except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, between the date hereof Seller's business shall be conducted and the Closing, the Company shall: (i) conduct the Business only Manufacturing Assets shall be repaired and maintained in the Ordinary Course of Businessordinary and usual course, in a manner consistent with past practice; (iib) use its commercially reasonable efforts to (A) preserve except in the present ordinary course of business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company Seller shall not: not (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property commitment to make any capital expenditures after the Closing Date with respect to the units Business individually in excess of $5,000 or other equity interests in the aggregate in excess of the Company; $25,000; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any capital assets of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation Business with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that couldbook value, individually or in the aggregate, reasonably be expected in excess of $5,000 or encumber any of its capital assets; (iii) amend any of its material contracts that are part of the Business or (iv) grant any increases in employee compensation to be greater than $50,000an employee engaged in the Business, except pursuant to normal performance reviews; (xiiic) change or modify Seller shall use its credit, collection or payment policies, procedures or practices, including acceleration best efforts to preserve for Purchaser the goodwill of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilitiesall persons dealing with Seller in connection with the Business; (xivd) take any action which would adversely affect Seller shall cooperate fully with Purchaser as to arrangements for the ability transfer of the parties Manufacturing Assets to consummate the transactions contemplated by this AgreementPurchaser in an orderly fashion; (xve) amend Seller shall maintain in full force and effect all insurance policies now in effect or renewals thereof covering the operating agreement of Manufacturing Assets or its business and the Companyemployees employed in the Business and shall cooperate fully with Purchaser as to arrangements for obtaining insurance policies concerning the Manufacturing Assets and insurance and related benefits for the New XeTel Employees in accordance with the terms hereof in an orderly fashion after Closing; (xvif) agree Seller shall promptly notify Purchaser of (i) any breach or violation of, default or event of default under, or actual or threatened termination or cancellation of any material contract or other material instrument relating to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2its business, (Bii) that would make any material loss of, damage to, or disposition of any of the representations Manufacturing Assets (other than the sale or use of inventories in the ordinary course of business), and warranties of the Company in this Agreement (iii) any claim or litigation, threatened or instituted, or any of the Company Documents untrue other material adverse event or incorrect in any material respect occurrence involving or could result in any of the conditions to the Closing not being satisfied or affecting its business; (Cg) that could be reasonably expected to have a Material Adverse Effect Seller shall consult with Purchaser with respect to any collective bargaining negotiations affecting the CompanyBusiness; (h) Except as set forth in the Disclosure Letter, Seller has not agreed to, and shall not, sell, dispose of, distribute, encumber or enter into any agreement, arrangement or commitment, whether oral or written, for the sale, disposition, distribution or encumbrance of any portion of the Business (other than the sale or use of inventories in the ordinary course of business) and has not initiated and has not participated (nor shall it participate except to the extent in the reasonable opinion of Seller's counsel participation is necessary for Seller's Board of Directors to discharge its fiduciary duties to Seller's Shareholders) through agents, representatives or otherwise, in any discussions or negotiations with, or otherwise solicit from, any corporation, business or person any proposals or offers relating to any such disposition of any such portion of the Business, and no such action is contemplated by Seller as of the Closing Date.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingPurchaser, the Company shallSeller shall use their best efforts, and shall cause Pentec or PCM to: (i) conduct Conduct the Business businesses of Pentec or PCM only in the Ordinary Course of Businessordinary course consistent with past practice; (ii) use Use its commercially reasonable best efforts to (A) preserve the its present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company Pentec and PCM and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers Pentec and suppliers)PCM; (iii) maintain Maintain (A) all of the assets and properties ofof Pentec and PCM in their current condition, or used by, the Company consistent with past practice, ordinary wear and tear excepted and (B) insurance upon all of the properties and assets of Pentec and properties of the Company PCM in such amounts and of such kinds comparable com-parable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company Pentec and PCM in the Ordinary Course ordinary course of Businessbusiness consistent with past practices, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations applicable to the operation of the Company;Pentec and PCM; and (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply Comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement or with the prior written consent of Newcothe Purchaser, the Company Seller shall not, and shall cause Pentec and PCM not to: (i) Declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of Pentec or PCM or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, Pentec or PCM; (ii) Transfer, issue, sell or dispose of any shares of capital stock or other securities of Pentec or PCM or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of Pentec or PCM; (iii) Effect any recapitalization, reclassification, stock split or like change in the capitalization of Pentec or PCM; (iv) Amend the certificate of incorporation or by-laws of Pentec or PCM; (A) materially increase the salary or other annual level of compensation of any director employee of Pentec or Employee of the Company except for normal year-end increases in the Ordinary Course of BusinessPCM, (B) increase the annual level of compensation payable or to become payable by the Company to any of its executive officers, (C) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (CD) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement or (DE) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Pentec or PCM is a party; party or (E) pay involving a director, officer or make any dividend employee of Pentec or distribution PCM in his or her capacity as a director, officer or employee of cash Pentec or other property with respect to the units or other equity interests of the CompanyPCM; (iivi) (A) createExcept for trade payables and for indebtedness for borrowed money incurred in the ordinary course of business and consistent with past practice, incurborrow monies for any reason or draw down on any line of credit or debt obligation, assumeor become the guarantor, guaranteesurety, endorse endorser or otherwise become liable for any debt, obligation or responsible with respect to liability (whether directly, contingently contingent or otherwise) of any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Dateother Person, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify change the terms of any Indebtedness payables or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personreceivables; (iiivii) subject Subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedleases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets (whether tangible or intangible) of Pentec or PCM; (ivviii) acquire Acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration in the Ordinary Course ordinary course of Businessbusiness consistent with past practice) of Pentec or PCM except, with respect to the Companyitems listed on Schedule 6.2(b)(viii) hereto, as previously consented to by the Purchaser; (vix) Cancel or compromise any debt or claim or waive or release any material right of Pentec or PCM except as provided in Section 6.6 hereof, the ordinary course of business consistent with past practice; (x) Enter into any commitment for capital expenditures or the purchase of assets out of the ordinary course in excess of $5,000; (xi) Permit Pentec or PCM to enter into any transaction or to make or enter into any Contract which by reason of its size or otherwise is not in the ordinary course of business consistent with past practice; (xii) Permit Pentec or PCM to enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change Except for transfers of cash pursuant to normal cash management practices, permit Pentec or PCM to make any investments in or loans to, or pay any fees or expenses to, or enter into or modify its creditany Contract with, collection the Seller or payment policies, procedures or practices, including acceleration any Affiliate of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;the Seller; or (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree Agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company Seller in this Agreement or any of the Company Seller Documents untrue or incorrect in any material respect or could result in as of any of time through and including the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffective Time.

Conduct of the Business Pending the Closing. (a) Except (1) as otherwise expressly provided set forth on Schedule 8.2(a), (2) as required by this Agreement applicable Law, or (3) with the prior written consent of NewcoPurchaser in its sole and absolute discretion, between during the period from the date hereof of this Agreement to and through the ClosingClosing Date, the Company Sellers shall: (i) conduct the Business only in the Ordinary Course of Business, including, without limitation, with respect to (a) the pricing and terms of sale of inventory, (b) the timing, discounting and other practices in connection with the collection of accounts receivable, (c) the timing and other practices for payment of account payables and (d) compensation, bonuses, benefits and severance payable to Employees, subject to and in accordance with the further limitations set forth in Section 9.1(a); (ii) use its their commercially reasonable efforts to (Aa) keep their assets intact and maintain their assets in at least as good a condition as their current condition (reasonable wear and tear excepted), (b) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Business, and (Bc) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)suppliers of the Business; (iii) maintain perform in all material respects its obligations arising after the Petition Date under any Contract (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementincluding Real Property Leases); (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws that relate to or affect its assets and business or such Person’s ownership and/or use or operation thereof, including the timely, complete and correct filing of all reports and maintenance of all records required by any Governmental Authority to be filed or maintained; (v) continue to use and operate all assets and all aspects of its business used or operated by the Sellers as of the date hereof in a manner consistent with prior practice and in accordance in all material respects with all applicable Laws, and not enter into any contract nor otherwise act, nor suffer or permit any other Person to act, to restrict, interfere with or prevent the use or operation of such assets or business; (vi) promptly notify Purchaser in writing of any incidents or accidents occurring on or after the date hereof involving any assets or property owned or operated by the Sellers that resulted or could reasonably be expected to result in damages or losses to any portion of the business of the Sellers or damages in excess of $100,000; (vii) take steps promptly notify Purchaser in writing of the existence of any adverse business conditions arising on or after the date hereof threatening the continued, normal business operations of the Sellers or of any agreement, consent or order of any Governmental Authority involving any of the Sellers; (viii) promptly notify Purchaser of any Legal Proceeding of the type described in Section 5.12 commenced after the date hereof and/or, to renew all Permits the Knowledge of Sellers, threatened after the date hereof against the Sellers; (ix) provide prompt written notice to Purchaser (i) of any change in a timely manner prior any of the information contained in the representations and warranties made by the Sellers in Article V hereof or any exhibits or schedules referred to their lapseherein or attached hereto, including any Schedules and shall promptly furnish any information that Purchaser may reasonably request in relation to such change; provided, however, that such notice shall not operate to cure any breach of the representations and warranties made by the Company herein or any exhibits or schedules referred to herein or attached hereto, including any Schedules; and (viiix) pay all maintenance and similar fees and take all other appropriate actions as necessary provide prompt written notice to prevent the abandonment, loss or impairment of all Intellectual Property Purchaser of the Company.occurrence of any event that results in or would reasonably be expected to result in a failure to satisfy any of the conditions set forth in Article X. (b) Without limiting the generality of the foregoingExcept (1) as set forth on Schedule 8.2(b), except (2) as otherwise expressly provided required by this Agreement applicable Law, or (3) with the prior written consent of NewcoPurchaser in its sole and absolute discretion, during the Company period from the date of this Agreement to and through the Closing Date, Sellers shall not: (i) (A) increase the salary take any action as a result of which any representation or other compensation of any director or Employee warranty of the Company except for normal year-end increases Sellers made in Article V would be rendered untrue or incorrect if such representation or warranty were made immediately following the Ordinary Course of Business, (B) grant any bonus, benefit taking or other direct or indirect compensation failure to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any take such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Companyaction; (ii) (A) createmake or rescind any material election relating to Taxes, incursettle or compromise any material claim, assumeaction, guaranteesuit, endorse litigation, proceeding, arbitration, investigation, audit or otherwise become liable controversy relating to Taxes, or responsible with respect except as may be required by applicable Law or GAAP, make any material change to (whether directly, contingently any of its methods of accounting or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course preparation of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personits most recent Tax Returns; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased AssetsAssets to any Lien, except for Liens existing as of the date hereof; (iv) acquire any material properties or assets other than in the Ordinary Course of Business, or enter into any partnership, joint venture or similar arrangement (including, but not limited to, the contemplated joint venture with a Pakistani company for the formation and operation of a manufacturing facility near Lahore, Pakistan), or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets Seller’s assets other than inventory in the Ordinary Course of Business and obsolete or worthless equipment permitted to be sold pursuant to the DIP Credit Agreement; (except v) cancel, compromise or settle any debt or claim or waive or release any right in excess of $20,000 individually and $250,000 in the aggregate or, in connection with Trade Payables, accounts payable to employees for fair consideration travel and entertainment expense, workers’ compensation payments, or trade receivables, other than in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise enter into any debt or claim, or waive or release any material right commitment for capital expenditures in excess of the Company except $250,000 for all commitments in the Ordinary Course of Businessaggregate except for capital expenditure projects described by project and amount as line items as set forth on Schedule 8.2(b) hereof not to exceed the amount for each such category as described and set forth in such schedule; (vii) enter into, modify or terminate any labor or collective bargaining agreement Collective Bargaining Agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employeeorganization; (viii) introduce incur any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, Indebtedness other than in the Ordinary Course of its Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into assign, modify, cancel, otherwise impair or permit to lapse any transaction Material Contract (other than expiration in accordance with the terms thereof as a result of the passage of time and other than Real Property Leases as to which Section 8.2(b)(x) applies ) involving annual expenditures, purchases or enter intorevenues in excess of $100,000 annually; (x) assign, modify sublease, amend in any material respect, terminate, exercise (or renew waive) or permit to lapse any Contract which by reason options to renew, options to expand or options to purchase pursuant to any Real Property Leases involving expenditures in excess of its size or otherwise is not $100,000 annually (other than expiration in accordance with the terms thereof as a result of the passage of time); (xi) make any payments (a) in respect of professional fees for attorneys and accountants except to the extent and on the timing permitted under existing interim compensation and fee application procedures (other than professional fees payable to ordinary course professionals to the extent authorized to be paid under the existing Order of the Bankruptcy Court signed on 6/3/03 Authorizing Retention and Compensation of Professionals Utilized in the Ordinary Course of Business; ), (xb) enter into any Contractunder, understanding in respect of or commitment that restrains, restricts, limits or impedes pursuant to the ability KERP Program (other than the existing scheduled payment for the second quarter of 2005 pursuant to the BusinessKERP Order), or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment fees and expenses of any persons; financial advisor of Sellers (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than monthly fees in the Ordinary Course of Business currently approved amounts pursuant to existing procedures) or (Bc) Permit; (xii) settle in respect of fees and expenses of any broker or compromise any pending finder of Sellers except as consented to by Purchaser and except for such fees and expenses of a broker or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up finder relating to the maximum amounts and other terms as in effect on sale of real property by Sellers which are approved by the date of this AgreementBankruptcy Court prior to June 30, 2005; or (xviixii) agree to do anything (A) prohibited by this Section 6.2, 8.2. (Bc) that would make any During the period from the date of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to and through the Closing Date, Sellers shall not being satisfied declare, authorize, make or (C) that could be reasonably expected enter into a commitment to have a Material Adverse Effect with respect to the Company.make

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided by in this Agreement Agreement, or as expressly required to effect the Pre-Sale Reorganization or with the prior written consent of NewcoPurchaser (such consent not to be unreasonably withheld or delayed), between Sellers shall, and Sellers shall cause the date hereof Company and the Subsidiaries, pending Closing, the Company shallto: (i) conduct the Business only in the Ordinary Course of Business; (ii) use its their commercially reasonable efforts to (A) preserve the its present business operations, organization (including officers and Employeesemployees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)Subsidiaries; (iii) maintain (A) all of the properties and assets and properties of, (whether tangible or used by, intangible) of the Company consistent with past practiceand the Subsidiaries in their current condition, ordinary wear and tear excepted, and (B) insurance upon all of the properties and assets and properties (whether tangible or intangible) of the Company and the Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company, the Company and the Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of creditaccounts, and (C) comply with all contractual and other obligations of the CompanyCompany and the Subsidiaries; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(vsubject to Section 7.2(xi), including make on a timely basis and not delay the making such of planned capital expenditures in the amounts and at the times set forth in such plan;expenditures; and (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by in this Agreement or with the prior written consent of NewcoPurchaser (such consent not to be unreasonably withheld or delayed), Sellers shall not, and Sellers shall cause the Company shall notand the Subsidiaries not to: (i) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of, or other ownership interests in, the Company or any of the Subsidiaries or repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company or any of the Subsidiaries; (ii) transfer, issue, sell, pledge, encumber or dispose of any shares of capital stock or other securities of, or interests in, the Company or any of the Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of, or interests in, the Company or any of the Subsidiaries; (iii) effect any recapitalization, reclassification, stock split, combination or like change in the capitalization of the Company or any of the Subsidiaries, or amend the terms of any outstanding securities of the Company or any of the Subsidiaries; (iv) amend the memorandum of association, articles of association, certificate of incorporation or by-laws or equivalent organizational documents of the Company or any of the Subsidiaries; (v) other than in the Ordinary Course of Business (A) increase the salary or other compensation of any director officer or Employee employee of the Company or any of the Subsidiaries, except for normal year-end increases in the Ordinary Course of Businessincreases, (B) grant any bonusunusual or extraordinary bonus (excluding any Employee Bonus), benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or any of the Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company or any of the Subsidiaries (or amend any such agreement) agreement to which the Company or any of the Subsidiaries is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company); (iivi) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently contingently, or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5Indebtedness; (B) except in the Ordinary Course of Business, pay, prepay, acceleraterepay, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the CompanyCompany or any of the Subsidiaries; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other PersonPerson (other than to wholly-owned Subsidiaries in the Ordinary Course of Business); (iiivii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assetsproperties or assets (whether tangible or intangible) of the Company or any of the Subsidiaries; (ivviii) acquire any material properties or assets (whether tangible or intangible) or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets material properties or assets (except for fair consideration whether tangible or intangible) of the Company and the Subsidiaries, other than in the Ordinary Course of Business) of Business or in connection with the CompanyPre-Sale Reorganisation; (vix) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with with, any Personcorporation or other entity, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (vix) cancel or compromise any debt or claim, claim or waive or release any material right of the Company or any of the Subsidiaries except in the Ordinary Course of Business; (viixi) enter into any commitment for capital expenditures of the Company and the Subsidiaries in excess of $50,000 for any individual commitment and $100,000 for all commitments in the aggregate; (xii) enter into, modify or terminate any labor or collective bargaining agreement of the Company or any of the Subsidiaries or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to the Company or any Employeeof the Subsidiaries; (viiixiii) introduce any material change with respect to the operation of the BusinessCompany or any of the Subsidiaries, including any material change in the types, nature, composition or quality of its products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ixxiv) except for transfers of cash pursuant to normal cash management practices in the Ordinary Course of Business, permit the Company or any of the Subsidiaries to make any investments in or loans to, or pay any fees or expenses to, or enter into any transaction or enter into, modify or renew any Contract which by reason with any Affiliate of the Company or any of the Subsidiaries, or any director, officer or employee of the Company or any of the Subsidiaries; (xv) make a change in its size accounting or otherwise is not Tax reporting principles, methods or policies other than in the Ordinary Course of Business; (xxvi) other than in the Ordinary Course of Business, make or revoke any material Tax election, or settle or compromise any material Tax liability or enter into a settlement or compromise with respect thereto, or change (or make a request to any taxing authority to change) any material aspect of its method of accounting for Tax purposes; (xvii) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco the Company or Purchaser, any of the Subsidiaries to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xixviii) terminate, amend, restate, supplement or waive any rights under any (A) Permit, Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) PermitBusiness; (xiixix) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiiixx) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities;; | (xivxxi) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement;; and (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xviixxii) agree to do anything (A) prohibited by this Section 6.2, 7.2(b) or (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the CompanyEffect.

Conduct of the Business Pending the Closing. The Seller agrees that from the date hereof through the Closing Date, the Business will be conducted only in the usual and ordinary course consistent with past practice, and, except as may be permitted by this Agreement, or approved in writing in advance by Purchaser, the Seller agrees as follows: (a) The Seller will, so far as it is within its power to do so, carry on the Business substantially in the same manner as heretofore conducted, and the Seller shall not institute any new methods of acquisition, production, marketing, distribution, sale, lease, license, management, operation, or engage in any transaction or activity, enter into any agreement or make any commitment, except in the ordinary course of business and consistent with past practice. (b) The Seller shall not institute any new methods of accounting relating to the Business. (c) The Seller shall use commercially reasonable efforts to preserve the Business intact, to protect and preserve the Seller's assets, and preserve its relationships with licensors, suppliers, distributors, customers, contractors and employees. (d) Except as otherwise expressly provided by specifically permitted pursuant to this Agreement or with the prior written consent of Newco, between the date hereof and the ClosingAgreement, the Company shallSeller shall not, with respect to the Business: (iA) conduct the Business only Borrow or agree to borrow any funds or (B) incur, or assume or become subject to, whether directly or by way of guarantee or otherwise, any obligation or liability (absolute or contingent), in the Ordinary Course case of Business(A) or (B) that would be an Assumed Liability, except in the case of clause (B) obligations and liabilities incurred in the ordinary course of business and consistent with past practice; (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill Permit or allow any of the Company and Acquired Assets to be subjected to any Encumbrance of any kind or description (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliersexcept Encumbrances created by law); (iii) maintain Dispose of or permit to lapse any rights to the use of any Intellectual Property included among the Acquired Assets (Aand the Seller shall take all commercially reasonable actions in respect of any infringement of any Intellectual Property of which it has knowledge), or dispose of or, except in the ordinary course of business, disclose to any Person any trade secret, formula, process or know-how not theretofore a matter of public knowledge relating to the Business; (iv) all Make any single capital expenditure or future commitment relating to the Business in excess of $20,000 for additions to property, plant or equipment or make aggregate capital expenditures or future commitments in excess of $50,000 for additions to property, plant or equipment; provided, however, that this restriction shall not apply to expenditures required to fulfill obligations to customers of the Business; (v) Sell, transfer or lease (other than in the ordinary course of business consistent with past practices) any of the Acquired Assets to, or enter into any agreement or arrangement with, any Affiliate of the Seller; (vi) Grant or extend any power of attorney or act as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any Person; (vii) Other than in the ordinary course of business consistent with past practice, distribute any property to any employee of the Seller engaged in the Business; (viii) Grant to any officer or employee engaged in the Business any increase in compensation or benefits, other than increases in compensation or benefits for employees in the ordinary course of business consistent with past practice; (ix) Pay any pension, retirement allowance or other employee benefit not required by any Benefit Plan of the Seller in existence on the date hereof; (x) Adopt, agree to adopt, or make any announcement regarding (i) the adoption of any new pension, retirement or other employee benefit plan, policy or program that applies only to employees of the Business, or (ii) adoption of any amendments to any Benefit Plan of the Seller in existence on the date hereof that applies only to employees of the Business, unless otherwise required by applicable law; or (xi) Agree, whether in writing or otherwise, to do any of the foregoing. (e) From the date hereof through the Closing Date, the Seller shall give prompt written notice to Purchaser of any material casualty losses or damages with respect to the Acquired Assets (whether or not any such loss or damage shall have been covered by insurance) and, if such loss is insured, the Seller shall promptly notify the carrier and make a claim; (f) No contract or commitment will be entered into, and no purchase of supplies and no sale of any of the Seller's assets and properties will be made, by or on behalf of the Seller in respect of the Business, except (i) normal contracts or commitments for the purchase of, and normal purchases of, supplies or used byinventory or for the sale of inventory, in each case made in the Company ordinary course of business and consistent with past practice, and (Bii) other contracts, commitments, purchases or sales in the ordinary course of business and consistent with past practice. (g) The Seller shall maintain insurance upon all on the Acquired Assets consistent with past practices and the Acquired Assets shall be used, operated, maintained and repaired in the ordinary course of business consistent with past practice. (h) The Seller shall not do any act or omit to do any act, or permit any act or omission to act (to the extent the Seller has control over such act or omission), which will cause a breach of any material contract or commitment of the assets and properties Seller arising out of or relating to the Company in such amounts and Business or which would cause the breach by the Seller of such kinds comparable to that in effect on the date of this Agreement;any representation, warranty, covenant or agreement made hereunder. (ivi) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) The Seller shall duly comply in all material respects with all laws applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance it and similar fees its properties, operations, business and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of employees comprising the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company.

Conduct of the Business Pending the Closing. (a) Except (i) as otherwise expressly provided contemplated by this Agreement Agreement, (ii) as set forth on Schedule 6.2(a), (iii) as Purchaser may consent in writing (which consent shall not be unreasonably withheld, conditioned or with delayed) and (iv) to the prior written consent extent prohibited by applicable Law or the regulations or requirements of Newcoany stock exchange or regulatory organization applicable to the Company, between the date hereof and the ClosingPurchased Companies or their Subsidiaries, the Company shall, and shall cause the Purchased Companies and their Subsidiaries to: (i) conduct the Business respective businesses of the Company, the Purchased Companies and their Subsidiaries only in the Ordinary Course of Business; (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the Company Company, the Purchased Companies and their Subsidiaries and (B) preserve the its present relationships relationship with Persons having business dealings with the Company (including customers Company, the Purchased Companies and suppliers)their Subsidiaries; (iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon maintain all of the assets and properties of the Company Company, the Purchased Companies and their Subsidiaries in their current condition, ordinary wear and tear excepted and (B) maintain (to the extent available) insurance upon all of the properties and assets of the Company, the Purchased Companies and their Subsidiaries in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company Company, the Purchased Companies and their Subsidiaries in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting discounting, deferring or accelerating payment of such accounts or Liabilities utilizing all available cash except for such actions taken in the Ordinary Course of Business that individually, and any available line of creditin the aggregate, are not material, and (C) use its commercially reasonable efforts to comply with all contractual and other obligations applicable to the operation of the Company;, the Purchased Companies and their Subsidiaries; and (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable laws, including, without limitation, Environmental Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided permitted by this Agreement or with as provided on Schedule 6.2(b), and except to the extent required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company, the Purchased Companies or their Subsidiaries, the Company shall not, and shall cause the Purchased Companies and their Subsidiaries not to (without the prior written consent of Newcothe Purchaser, the Company which consent shall not:not be unreasonably withheld, conditioned or delayed): (i) (A) increase the salary declare, set aside, make or pay any dividend or other compensation distribution in respect of the capital stock of the Company, any of the Purchased Companies or any Subsidiaries, other than dividends or distributions by a wholly-owned subsidiary of a Purchased Company to such Purchased Company (or other than in connection with compliance with Section 6.16), or (B) other than pursuant to existing written Contracts listed on Schedule 6.2(b)(i), repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company, the Purchased Companies and their Subsidiaries; (ii) transfer, issue, sell or dispose of any director shares of capital stock or Employee other securities of the Company, the Purchased Companies or any of their Subsidiaries or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of the Company, the Purchased Companies or any of their Subsidiaries, except that the Company except for normal year-end increases may (A) grant stock options under the Company Stock Plans in the Ordinary Course of Business; (B) issue shares of Company Common Stock pursuant to the ESPP and upon the exercise of options outstanding on the date hereof (or that are granted or issued after the date of this Agreement in compliance with this Agreement) under the Company Stock Plans; and (C) issue shares of Company Common Stock upon the exercise of Warrants or conversion of Convertible Securities; (iii) effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company, the Purchased Companies or any of their Subsidiaries; (iv) amend the certificate of incorporation, articles of association, bylaws or other organizational documents of the Company, the Purchased Companies or any of their Subsidiaries; (v) (A) increase the annual level of compensation (including equity compensation, whether payable in cash, stock or other property) of any employee, director or consultant of the Company, the Purchased Companies or any of their Subsidiaries, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee employee, director or directorconsultant, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company Company, the Purchased Companies or any of their Subsidiaries or otherwise modify or amend or terminate any such plan or arrangement or (D) enter into any employmentemployment (other than to the extent providing for “at-will” employment and without severance), deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company Company, the Purchased Companies or any of their Subsidiaries is a party; party or (E) pay involving a director, officer or make any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the Company, the Purchased Companies or any of their Subsidiaries in his or her capacity as a director, officer or employee of the Company, the Purchased Companies or any of their Subsidiaries; provided, however, that notwithstanding the foregoing, the Company may amend the Company Stock Plans to accelerate the vesting of options issued under the Company Stock Plans in connection with the Transaction; (iivi) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness for trade payables incurred in the Ordinary Course of Business since and amounts outstanding under existing credit facilities as of the Balance Sheet Datedate of this Agreement, borrow monies for any reason or draw down on any line of credit or debt obligation, or become the guarantor, surety, endorser or otherwise liable for any debt, obligation or liability (zcontingent or otherwise) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; provided that the Purchased Companies and their Subsidiaries may borrow or draw down under existing credit facilities so long as the aggregate principal amount outstanding thereunder as of the Effective Time does not exceed the amount outstanding thereunder as of the date of this Agreement; (iiivii) subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumberedExceptions and leases that do not materially impair the use of the property subject thereto in their respective businesses as presently conducted), any of the properties or assets (whether tangible or intangible) of the Company, the Purchased AssetsCompanies or any of their Subsidiaries; (ivviii) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material properties or assets of the Company, the Purchased Assets (Companies and their Subsidiaries except for fair consideration sales of products to customers in the Ordinary Course of Business; provided, however, that the Company may sell, transfer or convey its shares of capital stock of Metron Technology (Hong Kong) Limited, Metron Technology (Far East) Limited or Metron Technology (Nordic) AB to one or more Purchased Companies or Subsidiaries selected in consultation with the Purchaser (it being understood that, effective upon such sale, assignment, transfer or conveyance, the entity whose shares have been sold, assigned, transferred or conveyed shall be deemed, for purposes of the this Agreement, to be a “Subsidiary” and not a “Purchased Company;”). (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (viix) cancel or compromise any debt or claim, claim or waive or release any material right of the Company Company, the Purchased Companies or any of their Subsidiaries except pursuant to existing Contracts listed in the Ordinary Course of BusinessSchedule 6.2(b)(ix); (viix) enter into any commitment for capital expenditures of the Company, the Purchased Companies and their Subsidiaries in excess of $25,000 for any individual commitment and $250,000 per quarter for all commitments in the aggregate; (xi) enter into, modify or terminate any labor or collective bargaining agreement of the Company, the Purchased Companies or any of their Subsidiaries or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to the Company, the Purchased Companies or any Employeeof their Subsidiaries; (viiixii) introduce any material change with respect to the operation of the BusinessCompany, the Purchased Companies or any of their Subsidiaries, including any material change in the types, nature, composition or quality of its products or services, take any action to cause any material change in any contribution of its product or service lines to its revenues or net income, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ixxiii) permit the Company, the Purchased Companies or any of their Subsidiaries to enter into any transaction or to make or enter into, modify or renew into any Contract which by reason of its size size, nature or otherwise is not in the Ordinary Course of Business; (xxiv) permit the Company, the Purchased Companies or any of their Subsidiaries to enter into or agree to enter into any merger or consolidation with, any corporation or other entity, or engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any other Person; (xv) enter into any ContractContract or transaction between the Company on one hand and any Purchased Company or their Subsidiaries on the other hand; (xvi) (A) make or rescind any election relating to Taxes, understanding settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit controversy relating to Taxes or (B) except as required by applicable law or GAAP, make any change to any of its Tax or reporting or accounting practices, methods or policies; (xvii) enter into any contract or agreement or commitment that which restrains, restricts, limits or impedes the ability of the BusinessCompany, the Purchased Companies or the ability any of Newco or Purchaser, their Subsidiaries to compete with or conduct any business or line of business in any geographic area or solicit the employment of any personsarea; (xixviii) terminatechange its fiscal year, amendrevalue any of its assets or except as required under GAAP or applicable Law, restatemake any changes in financial accounting methods, supplement principles or waive practices except as required by GAAP or by a Governmental Body and as concurred to by the Company’s independent public accountants; (xix) commence or settle any rights under Legal Proceeding; (xx) enter into any (A) Contract that if in effect as of the date hereof would be a Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability Contracts of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts type set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this AgreementSchedule 6.2(b)(xx); or (xviixxi) agree to do anything (A) prohibited by this Section 6.2, (B) that 6.2 or anything which would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could reasonably be expected to result in any of the conditions to the Closing condition set forth in Section 7.2(a) not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companysatisfied.

Conduct of the Business Pending the Closing. (a) Except as set forth in Schedule 5.2 of the Disclosure Schedule, as required by applicable Law, as otherwise expressly provided contemplated by this Agreement Agreement, or with the prior written consent of NewcoPurchaser, between the date hereof and the ClosingClosing Date, Seller shall and shall cause the Company and HRM to: (a) conduct the EMS Business and the Business Office Business (including, without limitation, collecting accounts receivable and paying accounts payable) only in the ordinary course consistent with past practice; (b) not repurchase, redeem or otherwise acquire any outstanding shares of the capital stock or other securities of, or other ownership interests in, the Company shall: (i) conduct or HRM; not transfer, issue, sell or dispose of any shares of capital stock or other securities of the Business only in Company or HRM or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the Ordinary Course of BusinessCompany’s or HRM’s capital stock or other securities; (iic) not effect any recapitalization, reclassification, stock split or like change in the capitalization of the Company or HRM; (d) not amend the Certificate of Incorporation or the By-Laws, or the certificate of incorporation or by-laws of HRM; (e) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers including, without limitation, management and Employeesthe sales force) and goodwill of the EMS Business and the Business Office Business of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)HRM; (iiif) maintain (A) all of not, other with respect to the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Reimbursement Business, (Bi) continue materially increase the compensation payable or to collect accounts receivable and pay accounts become payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of by the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v)or HRM to any of their respective directors, including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonmentofficers, loss employees, agents or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Businessrepresentatives, (Bii) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan plan, payment or arrangement made to, for, or with any of the directors, officers, Employeesemployees, agents or representatives of the Company or otherwise modify HRM or amend or terminate any such plan or arrangement (Diii) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company or HRM is a party; party or (E) pay involving a director, officer or make any dividend or distribution of cash or other property with respect to the units or other equity interests employee of the CompanyCompany or HRM in his or her capacity as a director, officer or employee of the Company or HRM; (iig) (A) except for trade payables and obligations or liabilities to be assumed by Seller pursuant to Section 5.9, not create, incur, assumeacquire, guarantee, endorse guarantee or otherwise assume or become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions subject to, or investments inagree to incur or become subject to, any debt or other Personobligation for borrowed money on behalf of the Company or HRM; (iiih) not subject to any Lien or otherwise encumber or, (except for Permitted Exceptions, permit, allow or suffer to be subjected to Liens that do not impair in any Lien or otherwise encumberedmaterial respect the use of the property subject thereto in their respective businesses as presently conducted), any of the Purchased Assetsproperties or assets of the EMS Business or the Business Office Business (whether tangible or intangible); (ivi) not acquire any material properties or assets or and not sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) material properties or assets of the CompanyEMS Business or the Business Office Business; (vj) not cancel or compromise any debt or claim or waive or release any material right of the Company or HRM except for in the ordinary course of business consistent with past practice; (k) not enter into any commitment for capital expenditures related to the EMS Business or the Business Office Business or to Accordis as provided a legal obligor; (l) not enter into, modify or terminate any labor or collective bargaining agreement of the Company or HRM or, through negotiation or otherwise, make any commitment or incur any liability to any labor organization with respect to the Company or HRM; (m) not declare or pay any dividend or make any other distribution to its shareholders whether or not upon or in respect of any shares of its capital stock; provided, however that Purchaser acknowledges that on or prior to the Closing Date, Seller will withdraw any cash balances of the Company and HRM pursuant to Section 6.6 hereof5.8(b); (n) not enter into any lease of real property, except any renewals of existing leases in the ordinary course of business; (o) not permit the Company or HRM to enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business corporation or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Personother entity; (vip) cancel to the extent it may affect or compromise any debt or claim, or waive or release any material right of relate to the Company except in the Ordinary Course or HRM, not make or change any Tax election, change any annual Tax accounting period, adopt or change any method of Business; (vii) enter intoTax accounting, modify or terminate file any labor or collective bargaining agreement oramended Tax Return, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction closing agreement, settle any Tax claim or enter intoassessment, modify surrender any right to claim a Tax refund, offset or renew other reduction in Tax liability or consent to any Contract which by reason of its size extension or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability waiver of the Business, or the ability of Newco or Purchaser, limitations period applicable to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any Tax claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementassessment; or (xviiq) agree agree, whether in writing or otherwise, to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Companyforegoing.

Conduct of the Business Pending the Closing. (a) From and after the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms, but subject to 0, Sellers shall, except with the consent of Buyer or as otherwise required or restricted by Law, pursuant to the Bankruptcy Code or an order of the Bankruptcy Court, (x) operate the Business in the Ordinary Course of Business and (y) without limiting the generality of the foregoing: (i) use commercially reasonable efforts to keep available the services of its officers and Covered Employees; (ii) except as related to or the result of the filing or pendency of the Bankruptcy Cases, use commercially reasonable efforts to maintain reasonably satisfactory relationships with licensors, licensees, suppliers, contractors, distributors, consultants, vendors and other Persons having business relationships with the Business (other than payment of pre-petition claims); (iii) operate the Business and Acquired Assets, in all material respects, in compliance with all Laws applicable to the Business and Sellers. For avoidance of doubt, except as otherwise set forth in Section 2.3(c), all inventory and Merchandise designated for sale on the E-Commerce Platform shall not be offered for sale in any Store, and any inventory and Merchandise designated for sale in a Store shall not be offered for sale on the E-Commerce Platform; (iv) place orders for Merchandise in a commercially reasonable manner that is consistent with the Buying Plan; (v) without any obligation to purchase in any quantity of Merchandise for the E-Commerce Business that is not consistent with the Buying Plan, use commercially reasonable efforts to receive Merchandise ordered in accordance with purchase orders; (vi) upon the written request and at the sole cost and expense of Buyer, arrange for aircraft shipment of any Merchandise agreed to by Sellers in its reasonable discretion that is subject to an E-Commerce Order (“Aircraft Shipping Charges”); provided, however,, that Buyer shall reimburse (or at the request of Sellers directly pay) all costs and expenses associated with such aircraft shipment, including without limitation, all airplane, fuel and freight costs and associated permits, tariffs and taxes. Buyer acknowledges and agrees that any amounts paid in connection with this Section 5.2(a)(vi) shall be in addition to the Purchase Price; further provided, however, that in the event of an Alternative Transaction, Buyer will have no obligation for payment of Aircraft Shipping Charges, and Sellers shall refund, as an Administrative Expense Claim, Buyer for any reimbursements Buyer paid to Sellers on account of Aircraft Shipping Charges ; and (vii) use commercially reasonable efforts to identify and remove all Allegedly Infringing Merchandise and Violative Merchandise from the Stores, the Distribution Center and E-Commerce Business. (b) Except (i) in the Ordinary Course of Business, (ii) as required by applicable Law or by order of the Bankruptcy Court, (iii) as otherwise expressly provided required by this Agreement Agreement, (iv) in accordance with the Buying Plan, or (v) with the prior written consent of NewcoBuyer, between the date hereof and the Closing, the Company shallSellers shall not: (i) conduct subject any of the Acquired Assets to any Lien, except for permitted post-petition liens and any Lien secured and granted pursuant to any debtor in possession financing order; (ii) terminate, permit to expire, amend or fail to renew, obtain or preserve any Permit material to the operation of the E-Commerce Business only and the Acquired Assets as a whole; (iii) make any loans or advances outside of the Ordinary Course of Business; (iv) enter into any Contract or Lease, including purchase orders, other than Contracts (but not Leases) with a value that do not exceed $250,000 individually or $500,000 in the aggregate; (v) incur, create, assume, guarantee or become liable for any indebtedness for borrowed money; (vi) modify, amend, supplement, transfer, or terminate any Contract or Lease, other than Contracts (but not Leases) which are not material to the E-Commerce Business or the Acquired Assets; (vii) fail to maintain in full force and effect any filings necessary to maintain the material Owned Intellectual Property; (viii) write up, write down or write off the book value of any assets other than in the Ordinary Course of Business; (iiix) use its commercially reasonable efforts to (Areject any Contracts or Leases other than as set forth on Section 5.2(b)(ix) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers)Disclosure Schedule; (iiix) maintain (A) all of the assets and properties of, or used by, the Company consistent make any new commitment with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable respect to that in effect on the date of this Agreementmaterial capital expenditures; (ivxi) (Aa) maintain increase the books, accounts and records rate or terms of compensation payable or to become payable to any of the Company officers or employees of the Sellers or (b) increase the rate or terms of any (including entering or adopting any new) bonus, pension or other employee benefit plan covering any of the officers or employees of Sellers; (xii) waive any of the rights of the Sellers under any confidentiality or non-compete provisions of any Contract; (xiii) seek to accelerate the receipt of any royalty payments or licensing or other receivables generated by the Sellers, by way of discount or otherwise; (xiv) other than acquisitions and dispositions of Merchandise in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course acquire, dispose of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire transfer any material properties asset, property or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreementintellectual property right; (xv) amend pay, settle or compromise any material Litigation or threatened Litigation involving the operating agreement of the CompanySellers, or commence any Litigation; (xvi) agree change accounting policies or procedures, except as required by a change in GAAP; (xvii) invalidate or cause the cancellation of any current insurance coverage (without replacement thereof) or fail to materially increase Liabilities from maintain current insurance coverage or suitable renewals thereof providing coverage substantially the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up same as any expiring policy; (xviii) fail to file any Tax Return when due with respect to the maximum amounts and other terms as in effect on Acquired Assets or the date of this AgreementBusiness; or (xviixix) agree agree, whether in writing or otherwise, to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company5.2.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (i) as set forth on Schedule 7.2(a), (ii) as required by applicable Law, (iii) as otherwise expressly provided contemplated by this Agreement in connection with, or in furtherance of, the consummation of the transactions contemplated hereby (including any repayment and termination of the Credit Facilities), or (iv) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between the date hereof and the Closingdelayed or conditioned), the each Company shall: (iA) use commercially reasonable efforts to conduct the Business respective businesses of the Latisys Companies only in the Ordinary Course of Business;; and (iiB) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Latisys Companies. (b) Prior to the Closing, except (i) as set forth on Schedule 7.2(b), (ii) as required by applicable Law, (iii) as otherwise contemplated by this Agreement in connection with, or in furtherance of, the consummation of the transactions contemplated hereby (including any repayment or termination of the Credit Facilities), or (iv) with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), no Company and shall: (A) transfer, pledge, encumber, issue, sell or dispose of any shares of capital stock or other securities of any Latisys Company or grant options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of any Latisys Company; (B) preserve effect any recapitalization, reclassification or like change in the present relationships with Persons having business dealings with the Company (including customers and suppliers)capitalization of any Latisys Company; (iiiC) maintain (A) all amend the certificate of the assets and properties of, incorporation or used by, the Company consistent with past practice, and (B) insurance upon all -laws or similar governance documents of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreementany Latisys Company; (ivD) (A) maintain the booksmortgage, accounts and records pledge or knowingly subject to any Lien, any of the Company Real Property or Assets (whether tangible or intangible) of any Latisys Company, except for Permitted Liens and Liens under the Credit Facilities that will be released at or in connection with the Closing; (E) other than in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) increase the salary or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation to any Employee or director, (C) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is a party; or (E) pay or make any dividend or distribution of cash or other property with respect to the units or other equity interests of the Company; matters addressed in subsection (iiG) (A) createbelow, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets Real Property or assets of any Latisys Company (except for fair consideration the purpose of disposing of obsolete or worthless assets or to the extent such assets are replaced with like assets of equivalent value); (F) other than in the Ordinary Course of Business) , pay, discharge, cancel, settle or compromise any material debt or claim or waive or release any material right of the any Latisys Company; (vG) except enter into any commitment for capital expenditures of any Latisys Company in excess of $1,000,000 for any individual project, other than (i) as provided in Section 6.6 hereofcontemplated by the Latisys Companies’ current budget or (ii) related to Contracts with customers; (H) enter into, modify or terminate any labor or collective bargaining agreement of any Latisys Company or, through negotiations or otherwise, make any commitment or incur any liability to any labor organizations; (I) cause or allow any Latisys Company to enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business corporation or invest in, make a loan, advance or capital contribution toother entity, or otherwise acquire the securities of any other Person, or enter into any joint venture; (viJ) cancel excluding any Company Closing Bonuses, increase the compensation of any employee of a Latisys Company, make any material change in employee benefits or compromise other compensation arrangements affecting any debt or claimemployee of a Latisys Company, or waive institute any new (or release modify any material right existing) severance or termination pay practices affecting any director, officer or employee of a Latisys Company, provided that the foregoing restrictions shall not apply to performance bonuses relating to the 2014 calendar year, to the extent accrued in the Closing Working Capital and provided further that the foregoing restrictions shall only apply between the date of this Agreement and the thirtieth (30th) day after the date of this Agreement, it being understood and agreed that if the Closing has not occurred as of such thirtieth (30th) day, the Latisys Companies shall thereafter be entitled to take any of the Company except foregoing actions in the Ordinary Course of BusinessBusiness without the Purchaser’s consent; (viiK) enter intoexcept as required by GAAP or by applicable Law, modify change any of the material accounting principles or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization practices used by the Latisys Companies; (1) except with respect to any Employee; (viii) introduce any material change Material Contracts with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than customers in the Ordinary Course of Business, make enter into or amend any change in product specifications Material Contract or prices (2) terminate, breach, or terms of distributions of such productswaive any material right under, any Material Contract; (ixM) enter into make any transaction settlement of or enter intocompromise any material Tax liability, modify file any amendment to any Tax Return, change in any material respect any Tax election or renew Tax method of accounting or make any Contract which by reason new Tax election or adopt any new Tax method of its size accounting, or otherwise is not consent to any extension or waiver of the limitation period applicable to any claim or assessment in the Ordinary Course respect of BusinessTaxes; (xN) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business borrowings under the Credit Facilities, incur or (B) Permitassume any Indebtedness for borrowed money, assume, guarantee, endorse or otherwise become liable or responsible for the obligations of any other Person or make any loans, advances or capital contributions to, or investments in, any Person, including among the Latisys Companies; (xiiO) settle declare, set aside, make or compromise pay any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables dividend or other liabilities; distribution, payable in assets or other securities, property or otherwise, with respect to any equity interests of any Latisys Company; or (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xviiP) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect with respect to the Company7.2.

Conduct of the Business Pending the Closing. (a) Except Prior to the Closing, except (1) as set forth on Schedule 9.2(a), (2) as required by applicable Law (including any binding Bankruptcy Court Order), (3) as otherwise expressly provided required by this Agreement or (4) with the prior written consent of NewcoPurchaser (which consent shall not be unreasonably withheld, between conditioned or delayed), Sellers shall and shall cause the date hereof and the Closing, the Company shallTransferred Entities to: (i) conduct the Business only in the Ordinary Course of Business;; and (ii) use its their commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company Business, and (B) preserve the present relationships with Persons having business dealings customers and suppliers of the Business. (b) Except (1) as set forth on Schedule 9.2(b), (2) as required by applicable Law (including any binding Bankruptcy Court Order), (3) as otherwise expressly required by this Agreement or (4) with the Company prior written consent of Purchaser (including customers which consent shall not be unreasonably withheld, conditioned or delayed), Sellers shall not and suppliers);shall not permit any Transferred Entity to, solely as it relates to the Business: (iiii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company other than in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply with all contractual and other obligations of the Company; (v) comply with the capital expenditure plan of the Company for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner prior to their lapse; and (viii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of all Intellectual Property of the Company. (b) Without limiting the generality of the foregoing, except as otherwise expressly provided by this Agreement or with the prior written consent of Newco, the Company shall not: (i) (A) materially increase the salary or other annual level of compensation of any director or Employee executive officer of the Company except for normal year-end increases in the Ordinary Course of Businessany Seller, (B) grant any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any Employee director or directorexecutive officer, (C) materially increase the coverage or benefits available under any (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus Employee Benefit Plan or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (D) enter into any employment, deferred compensation, stay bonus, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) with a director or executive officer of any Seller, except, in each case, as required by applicable Law from time to which the Company is a party; time in effect or (E) pay or make by any dividend or distribution of cash or other property with respect to the units or other equity interests of the CompanyEmployee Benefit Plans; (ii) (A) createmake or rescind any material election relating to Taxes, incursettle or compromise any claim, assumeaction, guaranteesuit, endorse litigation, proceeding, arbitration, investigation, audit or otherwise become liable controversy relating to Taxes, or responsible with respect except as may be required by applicable Law or GAAP, make any material change to (whether directly, contingently any of its methods of accounting or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course preparation of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Personits most recent Tax Returns; (iii) subject any of the Purchased Assets to any Lien or otherwise encumber orLien, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets that would be Purchased Assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the material Purchased Assets (except pursuant to an existing Contract for fair consideration in the Ordinary Course of Business) Business or for the purpose of the Companydisposing of obsolete or worthless assets); (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger Contract that if entered into prior to the date hereof would be a Material Contract or consolidation with amend or modify any Person, and not engage Material Contract in any new business a manner adverse to the Business or invest in, make a loan, advance or capital contribution tothe Purchaser, or otherwise acquire extend the securities term of any PersonMaterial Contract; (vi) (x) accelerate or delay collection of any notes or accounts receivable generated by the Business in advance of or beyond their regular due dates or the dates they would have been collected in the Ordinary Course of Business, (y) delay or accelerate payment of any account payable or other liability of the Business beyond or in advance of its due date or the date when such liability would have been paid in the Ordinary Course of Business or (z) otherwise alter their practices relating to current assets or current liabilities or other items that could affect Excess Cash; (vii) incur, assume or guarantee any Indebtedness or amend, modify or change the terms of any Indebtedness; (viii) cancel or compromise any material debt or claim, claim or waive or release any material right of the Company any Seller that constitutes a Purchased Asset except in the Ordinary Course of Business; (viiix) make any capital expenditures that in the aggregate with all other capital expenses incurred from and after April 1, 2010, are in excess of $26 million; (x) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size or otherwise is not in the Ordinary Course of Business; (x) enter into any Contract, understanding or commitment that restrains, restricts, limits or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise any pending or threatened Legal Proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreementorganization; or (xviixi) agree to do anything (A) prohibited by this Section 6.29.2. (c) Without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), none of the Sellers shall (or authorize or permit any Affiliate or Opco Joint Venture, or any other Person with respect to which any Seller has the right or ability, directly or indirectly, by contract or otherwise, to control or prevent such action, to) enter into any Contract that contains, or amend, change, supplement or otherwise modify (including through any conditional waiver) any existing Contract to include, any provision or term (i) prohibiting, or requiring the consent of any Person in connection with, the assignment to any Purchasing Entity of any Contract to which any Seller is a party or the sale or transfer of any Assets and Properties of any Seller to any Purchasing Entity or (ii) providing for any one or more of the following relating to any Person’s Ownership or Management or any change therein: (A) any acceleration of any right or benefit of any party to any Contract or of any of its Affiliates (other than of any Seller), (B) that would make any loss of any benefit or right of any party to any Contract or of any of the representations and warranties of the Company in this Agreement or any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or their respective Affiliates, (C) any right of termination, cancellation or modification for any party to any Contract or for any of its Affiliates (other than for any Seller) or (D) any other right or event that could be reasonably expected to have a Material Adverse Effect adversely affects Purchaser or the Mortgage Lenders. The parties understand and agree that Purchaser has provided its written consent with respect to the Companydocuments attached hereto as Schedule 9.2(c), but not to any changes, supplements or other modifications thereto.

Conduct of the Business Pending the Closing. (a) Except as otherwise expressly provided contemplated by this Agreement and the schedules attached hereto or with the prior written consent of Newcothe Purchaser (which consent shall not be unreasonably withheld, between delayed or conditioned), during the period from the date hereof to and through the ClosingClosing Date, the Seller shall preserve in all material respects its business operations, organization and goodwill and shall use commercially reasonable efforts, subject to compliance with any contractual obligations, to cause the Project Company shall: to: (i) conduct the Business only in the Ordinary Course of Business; (ii) use its commercially reasonable efforts to (A) preserve the present business operations, organization (including officers and Employees) and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company (including customers and suppliers); (iii) maintain (A) all of the assets and properties of, or used by, the Company consistent with past practice, and (B) insurance upon all of the assets and properties of the Company in such amounts and of such kinds comparable to that in effect on the date of this Agreement; (iv) (A) maintain the books, accounts and records of the Company in the Ordinary Course of Business, (B) continue to collect accounts receivable and pay accounts payable and other Liabilities set forth on the Balance Sheet in the Ordinary Course of Business utilizing normal procedures and without discounting or accelerating payment of such accounts or Liabilities utilizing all available cash and any available line of credit, and (C) comply in material compliance with all Applicable Laws, Approvals and contractual obligations; (ii) operate and other obligations maintain the Facility in accordance with Good Utility Practices; (iii) pay all Liabilities as and when due; (iv) continue in full force and effect the insurance coverage under the policies set forth in Section 5.21 of the Company; Seller’s Disclosure Schedule; and (v) comply with use commercially reasonable efforts to maintain the capital expenditure plan existing Employees. Further, the Seller will reasonably inform and involve, to the extent practicable provided no privilege is waived, the Purchaser in any defense of the Seller or the Project Company against any audit or investigation by the Federal Energy Regulatory Commission or any other Governmental Authority (except for 2009 set forth on Company Disclosure Schedule 6.2(a)(v), including making such capital expenditures in any audit or investigation during the amounts and at the times set forth in such plan; (vi) comply in all material respects with all applicable Laws; (vii) take steps to renew all Permits in a timely manner period prior to their lapse; and (viiithe Closing Date relating to U.S. federal income Taxes) pay all maintenance and similar fees and take all other appropriate actions as necessary that specifically relates in any way to prevent the abandonment, loss or impairment of all Intellectual Property of Assets prior to the CompanyClosing Date. (b) Without limiting the generality of the foregoing, except Except as otherwise expressly provided contemplated by this Agreement and the schedules attached hereto or with the prior written consent of Newcothe Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), during the period from the date hereof to and through the Closing Date, the Seller shall not and shall cause the Project Company shall not: not to (i) (A) increase the salary make any material modification, amendment or other compensation of any director or Employee of the Company except for normal year-end increases in the Ordinary Course of Business, (B) grant any bonus, benefit or other direct or indirect compensation extension to any Employee existing Contract or director, enter into any additional Contract with a payment commitment by the Project Company in excess of one hundred thousand U.S. dollars (C) increase the coverage or benefits available under any $100,000); (or create any new) severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, Employees, agents or representatives of the Company or otherwise modify or amend or terminate any such plan or arrangement (Dii) enter into any employmentcompromise or settlement of litigation, deferred compensation, stay bonus, severance, special pay, consulting, non-competition proceeding or similar agreement or arrangement with any directors or officers of the Company (or amend any such agreement) to which the Company is investigation by a party; or (E) pay or make any dividend or distribution of cash or other property with respect Governmental Authority relating to the units or other equity interests of the Company; (ii) (A) create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any Indebtedness except (u) the Indebtedness related to the Permitted Exceptions, (x) the Indebtedness reflected in the Balance Sheet, (y) the Indebtedness incurred in the Ordinary Course of Business since the Balance Sheet Date, or (z) the Indebtedness set forth on Company Disclosure Schedule 4.5; (B) except in the Ordinary Course of Business, pay, prepay, accelerate, discharge, purchase, repurchase or satisfy any Indebtedness issued or guaranteed by the Company; (C) materially modify the terms of any Indebtedness or other Liability; or (D) make any loans, advances of capital contributions to, or investments in, any other Person; (iii) subject to any Lien or otherwise encumber or, except for Permitted Exceptions, permit, allow or suffer to be subjected to any Lien or otherwise encumbered, any of the Purchased Assets; (iv) acquire any material properties or assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for fair consideration in the Ordinary Course of Business) of the Company; (v) except as provided in Section 6.6 hereof, enter into or agree to enter into any merger or consolidation with any Person, and not engage in any new business or invest in, make a loan, advance or capital contribution to, or otherwise acquire the securities of any Person; (vi) cancel or compromise any debt or claim, or waive or release any material right of the Company except in the Ordinary Course of Business; (vii) enter into, modify or terminate any labor or collective bargaining agreement or, through negotiation or otherwise, make any commitment or incur any Liability to any labor organization with respect to any Employee; (viii) introduce any material change with respect to the operation of the Business, including any material change in the types, nature, composition or quality of products or services, or, other than in the Ordinary Course of Business; (iii) allow the Membership Interest or the Assets to become subject to any Encumbrance other than a Permitted Encumbrance; (iv) issue any additional Membership Interests; (v) merge or consolidate the Project Company with any other Person or allow the Project Company to acquire any assets outside of the Ordinary Course of Business; (vi) sell, make any change in product specifications or prices or terms of distributions of such products; (ix) enter into any transaction or enter into, modify or renew any Contract which by reason of its size lease or otherwise is not dispose of any Assets other than in the Ordinary Course of Business; ; (vii) waive any claims or rights of the Project Company in excess of fifty thousand U.S. dollars ($50,000) other than in the Ordinary Course of Business; (viii) incur any indebtedness for borrowed money; (ix) take any affirmative action or fail to take any reasonable action within its control that could result in a Project Company Material Adverse Effect or Seller Material Adverse Effect; (x) make any material changes in the levels of inventory of parts or other supplies or materials included in the Tangible Personal Property; (xi) enter into any Contract, understanding Affiliated Contracts or commitment that restrains, restricts, limits other arrangement with its Affiliates; (xii) make any change in management personnel located at the Facility; (xiii) grant any Employee an increase in compensation or impedes the ability of the Business, or the ability of Newco or Purchaser, to compete with or conduct any business or line of business in any geographic area or solicit the employment of any persons; (xi) terminate, amend, restate, supplement or waive any rights under any (A) Material Contract, Real Property Lease, Personal Property Lease or Intellectual Property License, benefits other than in the Ordinary Course of Business or (B) Permit; (xii) settle or compromise if any pending or threatened Legal Proceeding or such increase would be applicable for any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in period after the aggregate, reasonably be expected to be greater than $50,000; (xiii) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; Closing Date; (xiv) take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement; (xv) amend the operating agreement of the Company; (xvi) agree to materially increase Liabilities from the amounts set forth on the Balance Sheet except in the Ordinary Course of Business under loan or credit agreements or arrangements up to the maximum amounts and other terms as in effect on the date of this Agreement; or (xvii) agree to do anything (A) prohibited by this Section 6.2, (B) that would make any of the representations and warranties of the Company in this Agreement Tax election, or enter into any of the Company Documents untrue or incorrect in any material respect or could result in any of the conditions to the Closing not being satisfied or (C) that could be reasonably expected to have a Material Adverse Effect agreement concerning Taxes, with respect to the CompanyAssets, if such election or agreement would apply to the Project Company or the Assets for any period after the Closing Date; or (xv) agree or commit to do any of the foregoing. (c) For the avoidance of doubt, the foregoing shall not require the Seller, the Project Company or any of their Affiliates or representatives to make any payments, incur any costs, or enter into or amend any contractual arrangements, agreements or understandings, unless such payment, incurrence or other action is required by any Applicable Law or Approval by any Governmental Entity or by contractual obligation.