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

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business of the Company and its Subsidiaries shall be conducted only in, and the Company 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 Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon (A) the exercise of Company Options outstanding as of the date of this Agreement and (B) the exercise of warrants. (c) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries (other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); (iv) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 or greater or enter into any partnership, joint venture or similar arrangement; (v) change any material accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditors; (vi) make any change in employment terms for any of its directors or officers; (vii) 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 Company or its Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) other than as required by applicable Law, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; or (xiv) commit or agree to take any of the actions described in this Section 5.1. (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writingwriting (and except as expressly contemplated, permitted or required by this Agreement), (i) the business of the Company and its Subsidiaries shall be conducted only in, and the Company 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 Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their its business organizations, to keep available the services of their its current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons Persons with which the Company or its Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall notnot (except as expressly contemplated, nor shall permitted or required by this Agreement and except as set forth on Schedule 6.1 to the Company permit any of its Subsidiaries to, Disclosure Letter) (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 equivalentsCompany Stock Rights, other than the issuance of shares of Company Common Stock Shares upon (A) the exercise of Company Stock Options outstanding as of the date of this Agreement Agreement; (v) take any action that would make the Company's representations and (B) the exercise of warrants. (c) Except as warranties set forth in Section 5.1(cArticle IV not true and correct in all material respects; (vi) take any action that would, or could reasonably be expected to, result in any of the Company Disclosure Schedule, conditions set forth in Article VII not being satisfied; (vii) amend the Company covenants and agrees that between the date Certificate of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation Incorporation (including any certificate of designations attached thereto) or bylaws Company Bylaws or other equivalent organizational documents; (iiviii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personPerson, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iiiix) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries (Person other than loans or advances less than $100,000 75,000 made in the ordinary course of business consistent with past practice); (ivx) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 100,000 or greater or enter into any partnership, joint venture or similar arrangementgreater; (vxi) change any material its accounting policies or methods of accounting in effect at June 30, 2005policies, except as required by GAAP as concurred with by the Company’s independent auditorsGAAP; (vixii) make any change in employment terms for any of its directors or officers; (viixiii) 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 Affiliates of the Company or its SubsidiariesCompany, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by ParentAgreement; (viiixiv) other than as required by applicable Law, make any change to the Company Benefit Plans; (ixxv) enter into sell, license, mortgage or otherwise encumber or subject to any leasing lien or licensing agreements (otherwise dispose of any material properties or assets, other than in the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements ordinary course of business consistent with respect to the FCC Licensespast practice; (xxvi) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle make any material claim, action Tax election not consistent with past practice or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of business, amend in settle or compromise any material respectfederal, waive any of its material rights understate, local or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended foreign income Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any SubsidiaryLiability; or (xivxvii) commit or agree to take any of the actions described in this Section 5.16.1(b). (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, except as otherwise provided in Section 5.1(a) of the Company Disclosure Letter or unless Parent shall otherwise agree consent in writingwriting (such consent not to be unreasonably withheld, conditioned or delayed), (i) the business of the Company and its the Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, in the ordinary course of business and in a manner consistent with prior practice, (ii) the Company and its the Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons with which the Company or its the Subsidiaries has have significant business relationsrelations such that their ongoing businesses shall not be impaired in any material respect at the Effective Time, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) 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 described in the last sentence of clause 1 of Section 3.9 of the Company Disclosure Letter and dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) except as set forth in Section 5.1(b) of the Company Disclosure Letter, issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon (A) the exercise of (1) Company Options outstanding as of the date of this Agreement and or (B2) the exercise of warrantsTop-Up Option. (c) Except as set forth in Section 5.1(c) of the Company Disclosure ScheduleLetter, the Company covenants and agrees that between the date of this Agreement and the Effective TimeTime without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) amend its articles certificate of incorporation (including any certificate of designations attached thereto) or bylaws (or other equivalent organizational documents); (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or elections to make “payment in kind” interest payments under such existing lines or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company Subsidiary or between the Company and any of its Subsidiaries Subsidiary (other than loans or advances less than $100,000 individually made in the ordinary course of business consistent with past practice); (iv) except as permitted in Section 5.5(b), merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by by Section 5.1 (d5.1(d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 or greater or enter into any partnership, joint venture or similar arrangement; (v) change any material accounting policies or methods of accounting in effect at June 30, 20052009, except as required by the SEC or as required by GAAP as concurred with by the Company’s independent auditors; (vi) make any change in employment terms for any of its directors or officers; (vii) 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 Company or its the Subsidiaries, other than with respect to alterations alterations, amendments or amendments creations made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or or, in any case, as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) other than as required by applicable LawLaw or as expressly contemplated by this Agreement, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xix) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31June 30, 20052009; (xiixi) other than a the renewal in the normal ordinary course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiiixii) except as required by Law, make or change any election with respect to Taxes or change any accounting method, file any claim for refund or any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; or (xiii) apply for or otherwise seek to obtain any License issued or granted by the FCC; or (xiv) commit or agree to take any of the actions described in this Section 5.15.1(c). (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it for the period from the date hereof until the earlier of (i) the Effective Time and December 31, 2009, the Company’s capital expenditures shall be consistent with its 2009 budget. If the Effective Time does not occur prior to December 31, 2009, then the Company shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures$3,000,000 in any calendar month during 2010 without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed). (e) Notwithstanding anything to the contrary contained herein but subject to the Settlement Agreement, nothing set forth in this Agreement shall be deemed to modify or prohibit any party from taking any actions permitted by, or operating in accordance with past practices in connection with, the commercial arrangements currently in effect between Parent and the Company.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless the Parent shall otherwise agree in writingwriting (and except as expressly contemplated, permitted or required by this Agreement), (i) the business of the Company and its the Subsidiaries shall be conducted only in, and the Company and its the Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, (ii) the Company and its the Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons Persons with which the Company or its the Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon (A) the exercise of Company Stock Options outstanding as of the date of this Agreement Agreement; (v) take any action that would make the Company's representations and (B) the exercise of warrants. (c) Except as warranties set forth in Section 5.1(cArticle IV not true and correct in all material respects; (vi) take any action that would, or could reasonably be expected to, result in any of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, conditions set forth in Article VII not being satisfied; (ivii) amend its articles certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (iiviii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personPerson, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iiiix) make any loans or advances to any other person Person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries (Subsidiary and other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); (ivx) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 100,000 or greater or enter into any partnership, joint venture or similar arrangementgreater; (vxi) change any material its accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditorsGAAP; (vixii) make any change in employment terms for any of its directors or officers; (viixiii) 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 Affiliates of the Company or its the Subsidiaries, other than with 38 44 respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by the Parent; (viiixiv) other than as required by applicable Law, make any change to the Company Benefit Plans; (ixxv) enter into sell, license, mortgage or otherwise encumber or subject to any leasing lien or licensing agreements (otherwise dispose of any material properties or assets, other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal ordinary course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election business consistent with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiarypast practice; or (xivxvi) commit or agree to take any of the actions described in this Section 5.16.1(b). (dc) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company The Parent covenants and its Subsidiaries on a consolidated basis from agrees that between the date of this Agreement through December 31and the Effective Time, 2005. The unless the Company agrees that it shall otherwise agree in writing (and except as expressly contemplated, permitted or required by this Agreement, including except for the Parent Required Vote contemplated by this Agreement), the Parent shall not incur capital expenditures, in approve any transaction or agreement that would require the aggregate, in excess approval or consent of such projected capital expendituresits stockholders.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between that, after the date hereof and the earlier of this Agreement and (1) the Effective Time, unless or (2) termination of this Agreement in accordance with its terms, except as contemplated or permitted by this Agreement or required by applicable Laws or with the prior written approval of Parent or Purchaser (which shall otherwise agree in writingnot be unreasonably withheld, delayed or conditioned), the Company shall, and shall cause each of its Subsidiaries to, (i) the conduct its business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, in the ordinary course of business and in a manner consistent with prior past practice, (ii) the Company and use its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their the current officers and officers, key employees and to preserve the current relationships consultants of the Company and each of its Subsidiaries and to preserve business organizations of the Company and each of its Subsidiaries intact and to preserve and maintain existing relations and goodwill with customers, suppliers suppliers, contractors, distributors, licensors, licensees, partners and other persons Persons with which whom the Company or any of its Subsidiaries has significant material business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conductedand the requirements of the Company Material Contracts. Without limiting the generality of the foregoing, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between from the date of this Agreement and until the earlier of the Effective TimeTime or termination of this Agreement in accordance with its terms, except (w) as otherwise expressly contemplated or permitted by this Agreement, (x) with the prior written approval of Parent or Merger Sub (which shall not be unreasonably withheld, delayed or conditioned), (y) as required by applicable Law or any Governmental Entity or (z) as set forth in Section 6.1 of the Disclosure Schedule, the Company shall not, nor shall the Company will not and will not permit any of its Subsidiaries to, directly or indirectly: (i) declare amend or otherwise change (or propose to amend or otherwise change) its Certificate of Incorporation or Bylaws or equivalent organizational documents; (j) issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock of the Company or any of the Company Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including any phantom interest and including any Company RSUs, Company Stock Options or voting securities), of the Company or any of the Company Subsidiaries, except for the issuance of Company Shares pursuant to exercises of the Company Stock Options or vesting of Company RSUs outstanding on the date hereof; (k) transfer, lease, sell, pledge, license, dispose of, abandon, allow to lapse, or encumber any material assets, rights or properties or business of the Company or any of the Company Subsidiaries, except in the ordinary course of business; (l) declare, set aside, make or pay any dividends on dividend or make other distributions (whether distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (other than dividends or propertydistributions made by a Company Subsidiary to the Company or another Company Subsidiary) in or enter into an agreement with respect to the voting of its capital stock; (m) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, or authorize or agree to do any of the foregoing, directly or indirectly, any of its capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company; (ii) splitother equity securities, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock ownership interests or any securities convertible into any such shares of its capital stock, or any rightsoptions, warrants or options rights to acquire any such shares or convertible stock, securities or any stock appreciation rightsinterests, phantom stock plans except (i) in accordance with agreements evidencing Company Stock Options or stock equivalents, other than the issuance of shares of Company Common Stock RSUs or (ii) Tax withholdings and exercise price settlements upon (A) the exercise of Company Stock Options outstanding as or vesting of the date of this Agreement and (B) the exercise of warrants.Company RSUs; (cn) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation acquire, directly or indirectly (including by merger, consolidation, or acquisition of stock or assets or any certificate other business combination), in one transaction or any series of designations attached thereto) related transactions, any corporation, partnership, other business organization or bylaws any division thereof or any other equivalent organizational documentsbusiness, or any equity interest in any person; (ii) incur any indebtedness for borrowed money or guaranty issue or sell any such indebtedness debt securities or options, warrants, calls or other rights to acquire any debt securities of another person, other than (A) borrowings under existing lines of credit (the Company or under any refinancing of such existing lines) or (B) indebtedness owing toCompany Securities, or guaranties of indebtedness owing toassume, guarantee or endorse, or otherwise become responsible for (contingently or otherwise), the Companyobligations of any person; (iii) make any loans, advances or capital contributions, except for employee loans or advances for travel expenses and extended payment terms for customers, in each case subject to applicable Law and only in the ordinary course of business and not to exceed $1,000,000 in the aggregate; (iv) make, authorize, or make any commitment with respect to any capital expenditure or other person expenditure that (A) has not been set forth in the Company’s or the Company Subsidiaries’ annual budget, and (B) is collectively, in the aggregate for the Company and the Company Subsidiaries taken as a whole, in excess of $500,000 during any consecutive three-(3) month period; (v) make or direct to be made any capital investments or equity investments in any entity, other than loans investments in any wholly-owned Company Subsidiary; or advances between (vi) enter into or amend any Subsidiaries Contract, commitment or arrangement with respect to any matter set forth in this Section 6.1(f); (o) except as publicly announced prior to the date hereof, announce, implement or effect any reduction in labor force greater than five percent (5%) of the total Company headcount, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of the Company or between any Company Subsidiary (including, but not limited to, any “plant closing” or “mass layoff” as those terms are defined in the Worker Adjustment and Retraining Notification Act or any similar action under a similar Law), other than routine employee terminations; (p) enter into a new line of business that is material to the Company and the Company Subsidiaries taken as a whole; (q) make or change any Tax election, adopt or change any accounting period or any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim or assessment relating to the Company or any of the Company Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of the Company Subsidiaries, destroy or dispose of any books and records with respect to Tax matters relating to periods beginning before the Effective Time and for which the statute of limitations is still open or under which a record retention agreement is in place with a Governmental Authority, in each case, only to the extent such action would have the effect of materially increasing the Tax liability of the Company or any of the Company Subsidiaries for any period ending after the Effective Time; (r) settle any material claim, arbitration or other Action; (s) except as required by Law, or in the ordinary course of business consistent with past practice, enter into any Contract or amendment that would be a Company Material Contract, or amend or modify in any material respect in a manner that is adverse to the Company or any Company Subsidiary, or terminate or consent to the termination of, any Company Material Contract, or waive or consent to the termination of the Company’s or any Company Subsidiary’s material rights thereunder, in each case other than the termination or expiration of a Company Material Contract in accordance with its Subsidiaries terms; (t) enter into any Contracts (i) under which Company or any Company Subsidiary grants or agrees to grant to any Third Party any assignment, license (other than loans Standard Outbound Licenses), release, immunity or advances less than $100,000 made other right with respect to any Owned Company Intellectual Property, (ii) under which Company or any Company Subsidiary establishes with any Third Party a joint venture, strategic relationship, or partnership pursuant to which Company agrees to develop or create (whether jointly or individually) any material Intellectual Property, products or services; (iii) that will cause or require (or purport to cause or require) the Surviving Corporation or Parent to (A) grant to any Third Party any license, covenant not to xxx, immunity or other right with respect to or under any of the Intellectual Property or Intellectual Property Rights of Parent; or (B) be obligated to pay any royalties or other amounts to any Third Party (other than, with respect to the Surviving Corporation only, in connection with non-exclusive licenses of Software, or Contracts for licenses to or other rights to use Systems, entered into in the ordinary course of business consistent with past practice); ; (ivu) merge enter into or consolidate with amend any Contract pursuant to which any other entity party is granted, or that otherwise subjects the Company or any Company Subsidiary or Parent or any of its affiliates to, any non-competition, exclusive marketing or other exclusive rights of any type or scope that materially restrict the Company or any Company Subsidiary or, upon consummation of the Transaction, Parent or any of its affiliates, from engaging or competing in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any line of business or assets in a single transaction any location or series of transactions in which the aggregate consideration is $200,000 otherwise imposing material changes or greater restrictions on their assets, operations or business; (v) enter into any partnershipmaterial lease, joint venture material sublease or similar arrangement; material license for real property or material operating lease; (vw) change enter into or amend or otherwise modify any material accounting policies Contract or methods arrangement with persons that are affiliates or are executive officers or directors of accounting in effect at June 30, 2005the Company, except as otherwise permitted or required by GAAP as concurred with by this Agreement; (x) (i) increase in any respect the Company’s compensation or benefits of any employee, director or individual independent auditors; (vi) make any change in employment terms for any of its directors or officers; (vii) 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 contractor of the Company or its Subsidiaries, any Company Subsidiary other than with respect (1) as specifically required pursuant to alterations the terms of the Plans in effect on the date of this Agreement, (2) increases in salaries or amendments made with respect to wages of non-officers and non-directors officer employees as part of annual merit or other increases made in the ordinary course of business consistent with past practice and (3) payment of accrued or as required by applicable Law earned but unpaid bonuses or as expressly contemplated by this Agreement commissions, (ii) grant any severance or consented to in writing by Parent; (viii) other than as required by applicable Law, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-termination pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes employee, director or individual independent contractor of the Company or any Subsidiary; or (xiv) commit or agree Company Subsidiary other than as required pursuant to take any the terms of the actions described Plans in this Section 5.1. effect on the date of the Agreement, (diii) Section 5.1(d) terminate the employment of the Chief Executive Officer of the Company Disclosure Letter sets or any of his direct reports set forth on Schedule 6.1(p) other than for “cause”, or hire any new employee that will serve as a direct report to the projected capital expenditures for Chief Executive Officer of the Company and its Subsidiaries on or (iv) establish, adopt, enter into, amend or terminate any Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a consolidated basis from Plan if it were in existence as of the date of this Agreement through December 31Agreement, 2005. The Company agrees that it shall not incur capital expendituresor (v) accelerate the payment, right to payment or vesting of any material compensation or benefits; (y) commence any material Action, except as otherwise permitted or required by this Agreement; (z) delay the payment of any trade payables to vendors and other Third Parties or accelerate the collection of trade receivables and other receivables, in each case outside the aggregateordinary course of business consistent with past practices; (aa) terminate, cancel, amend or modify any insurance coverage policy maintained by the Company or any of the Company Subsidiaries that is not simultaneously replaced by a comparable amount of insurance coverage; (bb) enter into any arrangements (other than agreements in excess the ordinary course of such projected business consistent with Company’s or any Company Subsidiary’s past practices) relating to any royalty or similar payment based on the revenues, profits or sales volume of the Company or any of the Company Subsidiaries, whether as part of the terms of the capital expendituresstock of the Company or any Company Subsidiary or by any separate agreement; (cc) change the Company’s methods of accounting, except as required by concurrent changes in GAAP or in Regulation S-X of the Exchange Act, as agreed to by its independent public accountants; (dd) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company (other than the Merger); or (ee) otherwise make a commitment to do any of the foregoing.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent Par- ent shall otherwise agree in writing, (i) the business businesses of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, and (ii) the Company and its Subsidiaries Com- pany shall use all commercially its reasonable best efforts to preserve substantially substan- tially intact their the business organizationsorganization of the Company, to keep available the services of their the current officers and employees of the Company and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company agrees and covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries subsidiaries to, (i) declare or pay any dividends on or make other distributions (whether in cash, stock or property) distribu- tions in respect of any of its capital stock, except for dividends divi- dends by a wholly owned Subsidiary subsidiary of the Company to the Company Com- pany or another wholly owned Subsidiary subsidiary of the Company; , (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; , (iii) repurchase or otherwise acquire or permit any subsidiary to purchase or otherwise acquire, any shares of its capital stock; , or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 equivalentssecurities, other than the issuance of shares of Company Common Stock Shares upon (A) the exercise of Company Op- tions or Company Purchase Plan Options outstanding as of the date of this Agreement and (B) the exercise of warrants. (c) Except as set forth in Section 5.1(c) of under the Company Disclosure Schedule, Stock Option Plan or the Company covenants and agrees that between the date of this Agreement and the Effective TimeStock Purchase Plan, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries (other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); (iv) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 or greater or enter into any partnership, joint venture or similar arrangement; (v) change any material accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditors; (vi) make any change in employment terms for any of its directors or officers; (vii) 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 Company or its Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) other than as required by applicable Law, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; or (xiv) commit or agree to take any of the actions described in this Section 5.1respectively. (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.

Conduct of the Business Pending the Merger. (a) The Company covenants From and agrees that between after the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business of the Company and its Subsidiaries shall be conducted only in, and the Company 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 Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between the date of this Agreement and until the Effective Time, the Company shall, and shall cause each of the Subsidiaries to, conduct its business solely in the ordinary course consistent with past practice, and shall not, nor shall the Company permit any of its the Subsidiaries to, except as required or permitted pursuant to the terms hereof or as may occur in the ordinary course of business consistent with past practice: (i) declare make any material change in the conduct of its businesses and operations or pay enter into any dividends on material transaction; (ii) make any change in its Certificate of Incorporation or make other distributions By-laws; (whether in cash, iii) issue any additional shares of capital stock or property) equity securities (other than upon exercise of options or convertible securities, in each case outstanding on the date hereof), issue or grant any option, warrant or right to acquire any capital stock or equity securities, issue any security convertible into or exchangeable for its capital stock, alter in any material respect the terms of any of its capital stockoutstanding securities, except for dividends by a wholly owned Subsidiary or make any change in its outstanding shares of the Company to the Company or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue in its capitalization, whether by reason of a reclassification, recapitalization, stock split or authorize combination, exchange or propose the issuance readjustment of any other securities in respect ofshares, in lieu of or in substitution for shares of its capital stock; (iii) repurchase stock dividend or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any stock appreciation rights, phantom stock options or similar instruments; (iv) incur, assume or guarantee any indebtedness for borrowed money, issue any notes, bonds, debentures or other corporate securities or grant any option, warrant or right to purchase any thereof; (v) make any sale, assignment, transfer, abandonment or other conveyance of any of its assets or any part thereof; (vi) subject any of its assets, or any part thereof, to any lien or suffer such to be imposed other than such liens as may arise by operation of law; (vii) redeem, retire, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or declare, set aside or pay any securities convertible into any dividends or other distribution in respect of such shares of its capital stockshares, except for dividends by a wholly owned Subsidiary to the Company or any rights, warrants or options other wholly owned Subsidiary; (viii) take any other action that would cause any of the representations and warranties made in this Agreement not to acquire remain true and correct; or (ix) commit itself to do any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other than of the issuance of shares of Company Common Stock upon foregoing. (Ab) the exercise of Company Options outstanding as of From and after the date of this Agreement and (B) the exercise of warrants. (c) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and until the Effective Time, the Company shall not, nor shall use its best efforts to preserve substantially intact the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries business organization of the Company or between and the Subsidiaries, to keep available the services of the current officers and employees of the Company and any of its the Subsidiaries (other than loans or advances less than $100,000 made in and to preserve the ordinary course of business consistent with past practice); (iv) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 or greater or enter into any partnership, joint venture or similar arrangement; (v) change any material accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditors; (vi) make any change in employment terms for any of its directors or officers; (vii) 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 current relationships of the Company or its Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) other than as required by applicable Law, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease)Subsidiaries with customers, take-or-pay arrangements or suppliers and other affiliations, alignments or agreements persons with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; or (xiv) commit or agree to take any of the actions described in this Section 5.1. (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for which the Company and its the Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditureshave significant business relations.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between from the date of this Agreement and until the earlier of (1) the Effective TimeTime or (2) termination of this Agreement in accordance with Section 8.1, unless except as contemplated or permitted by this Agreement or required by applicable Laws or any Governmental Authority or with the prior written approval of Parent or Merger Sub (which shall otherwise agree in writingnot be unreasonably withheld, delayed or conditioned), the Company shall, and shall cause each Company Subsidiary to, (i) the conduct its business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, in the ordinary course of business and in a manner consistent with prior practice, past practice and (ii) the Company and use its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their the current officers and officers, key employees and to preserve the current relationships consultants of the Company and its Subsidiaries each Company Subsidiary and to preserve business organizations of the Company and each of Company Subsidiary intact and to maintain existing relationships and goodwill with customers, suppliers suppliers, lenders, vendors, landlords and other persons with which whom the Company or its Subsidiaries any Company Subsidiary has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between business. From the date of this Agreement and until the earlier of (1) the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; Time or (iv2) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon (A) the exercise of Company Options outstanding as of the date termination of this Agreement and in accordance with Section 8.1, except (Bw) as otherwise expressly contemplated or permitted by this Agreement, (x) with the exercise prior written approval of warrants. Parent or Merger Sub (cwhich shall not be unreasonably withheld, delayed or conditioned), (y) Except as required by applicable Law or any Governmental Authority or (z) as set forth in Section 5.1(c) 5.1 of the Company Disclosure Schedule, the Company covenants will not and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company will not permit any of its Subsidiaries Company Subsidiary to, directly or indirectly: (ia) amend or otherwise change its articles Certificate of incorporation (including any certificate of designations attached thereto) Incorporation or bylaws Bylaws or other equivalent organizational documents; ; (iib) incur any indebtedness for borrowed money issue, sell, pledge, dispose of, grant, transfer or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing toencumber, or guaranties authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of, any Company Securities, except for the issuance of indebtedness owing toCompany Shares pursuant to exercises of the Company Stock Options or vesting of Company RSUs or conversions of Convertible Notes in accordance with and pursuant to the Convertible Notes Indenture or dispositions of the Capped Call Transactions upon exercise and settlement or termination thereof in accordance with Section 6.17, in each case, that are outstanding on the Company; date hereof; (iiic) make transfer, lease, sell, mortgage, pledge, license, dispose of, abandon, allow to lapse, fail to maintain or encumber any loans material assets, rights or advances to any other person other than loans or advances between any Subsidiaries properties of the Company or between any of the Company and any of its Subsidiaries (other than loans or advances less than $100,000 made Subsidiaries, except in the ordinary course of business consistent with past practicepractice and the lapse of Registered Company Intellectual Property at the end of its term; (d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its or of any of the Company Subsidiaries’ capital stock (other than dividends or distributions made by a wholly-owned Company Subsidiary to the Company or another wholly-owned Company Subsidiary or in accordance with Section 6.17); ; (e) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire or offer to redeem, purchase or otherwise acquire, directly or indirectly, any of its or of any of the Company Subsidiaries’ capital stock, except (i) in accordance with agreements evidencing Company Stock Options or Company RSUs, (ii) Tax withholdings and exercise price settlements upon the exercise of Company Stock Options or vesting of Company RSUs or (iii) as required pursuant to the terms of the Convertible Notes or (iv) merge in accordance with the terms of the Capped Call Documentation; (f) (i) acquire, directly or consolidate with any other entity in any transactionindirectly (including by merger, consolidation, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business acquisition of stock or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 or greater or enter into any partnership, joint venture or similar arrangement; (v) change any material accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditors; (vi) make any change in employment terms for any of its directors or officers; (vii) alter, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to employeesbusiness combination), directors or affiliates of the Company or its Subsidiaries, any assets other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or any corporation, partnership, other business organization or any division thereof or any other business, or any equity interest in, any person (other than in accordance with Section 6.17); (ii) incur, create, assume, modify, renew, guarantee, refinance or otherwise become liable for any Indebtedness or issue any debt securities, or assume, guarantee or endorse, or otherwise become responsible for (contingently or otherwise), the obligations of any person, other than draw downs on the Company’s Existing Credit Agreement in the ordinary course of business consistent with past practice; (iii) make any loans, advances or capital contributions to any person, except for employee loans or advances for business expenses and extended payment terms for customers, in each case subject to applicable Law and only in the ordinary course of business consistent with past practice; (iv) make or direct to be made any capital investments or equity investments in any entity, other than investments in any wholly-owned Company Subsidiary; or (v) enter into or amend any Contract with respect to any matter set forth in this Section 5.1(f); (g) except as required by applicable Law any Company Benefit Plan set forth on Section 3.10(a) of the Disclosure Schedule or as otherwise required by applicable Law, (i) except in the ordinary course of business consistent with past practice for employees of the Company or any of the Company Subsidiaries who have an annual base salary below $150,000 (“Non-Management Employees”), increase the compensation or other benefits payable or provided to any employee, director or independent contractor of the Company or any of the Company Subsidiaries, (ii) enter into any change of control, severance, retention or similar arrangement with any employee of the Company or any of the Company Subsidiaries, (iii) hire or terminate (other than terminations for “cause”) any employees other than Non-Management Employees, other than any hire to fill a position having a title below vice president that is open as of the date of this Agreement or that becomes open in the ordinary course of business after the date of this Agreement due to the termination or resignation of an employee or individual independent contractor, in each case, with the newly hired individual having substantially the same compensation and benefit terms as the individual being replaced, (iv) take any action to fund or secure the payment of any amounts under any Company Benefit Plan, (v) make or grant any bonus or any incentive compensation other than annual bonuses payable for the 2020 fiscal year in the ordinary course of business consistent with past practice, (vi) discretionarily accelerate the vesting or payment of any cash or equity award (except as expressly contemplated permitted pursuant to the terms of this Agreement), other than a determination by the Company Board or a committee thereof of the achievement of performance Company RSUs for performance periods ending on or before December 31, 2020 in accordance with the terms of the applicable Company Stock Plan and applicable award agreements thereunder or (vii) establish, adopt, enter into, amend or terminate any Company Benefit Plan (or any plan, trust, fund, policy or arrangement that would be a Company Benefit Plan if it were in existence as of the date hereof) except for routine amendments or renewals to health and welfare plans (other than severance plans) that would not result in a material increase in benefits or in cost to the Company or any of the Company Subsidiaries; (h) make, change or revoke any Tax election, adopt or change any accounting period or any material accounting method with respect to Taxes, file any amended Tax Return in a manner inconsistent with past practice, enter into any closing agreement with respect to Taxes, settle any material Tax claim or assessment relating to the Company or any of the Company Subsidiaries, surrender any right to claim a refund of a material amount of Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment relating to the Company or any of the Company Subsidiaries, destroy or dispose of any books and records with respect to Tax matters relating to periods beginning before the Effective Time and for which the statute of limitations is still open or under which a record retention agreement is in place with a Governmental Authority; (i) compromise, settle or discharge any arbitration or other Action, other than where the amount paid in the compromise, settlement or discharge does not exceed $350,000 individually or $500,000 in the aggregate; (j) except as required by Law, or in the ordinary course of business consistent with past practice, enter into any Contract or amendment that would be a Company Material Contract if in effect on the date of this Agreement, or amend or modify in any material respect, or consent to the termination of, any Company Material Contract, or waive or consent to the termination of the Company’s or any Company Subsidiary’s material rights thereunder, in each case other than the termination or expiration of a Company Material Contract in accordance with its terms; (k) make any capital commitment, incur any capital expenditures or any obligations or liabilities in respect thereof in excess of 10% of the aggregate budget set on Schedule 5.1(k); (l) enter into any new line of business outside of the businesses being conducted by the Company or any Company Subsidiary on the date of this Agreement; (m) create any Lien against any material property or assets of the Company or any Company Subsidiary outside of the ordinary course of business, other than Permitted Liens; (n) enter into or amend any Contract pursuant to which any other party is granted, or that otherwise subjects the Company or any Company Subsidiary or Parent or any of its Subsidiaries to, any non-competition or other exclusive rights of any type or scope that materially restrict the Company or any Company Subsidiary or, following the Closing, Parent or any of its subsidiaries, from engaging or competing in any line of business or in any location; (o) enter into or amend or otherwise modify any Contract or arrangement with persons that are affiliates or are executive officers or directors of the Company, except as otherwise permitted or required by this Agreement; (p) commence any material Action, except (i) for collections of accounts receivable, (ii) in such cases where the Company in good faith determines that failure to commence such Action would result in the material impairment of a valuable aspect of its business, (iii) as otherwise permitted or required by this Agreement or consented (iv) to enforce this Agreement; (q) delay the payment of any trade payables to vendors and other Third Parties or accelerate the collection of trade receivables and other receivables, in writing by Parent; each case outside the ordinary course of business consistent with past practices; (viiir) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, reorganization, recapitalization or other reorganization of, the Company or any Company Subsidiary (other than the transactions contemplated by this Agreement); (s) terminate, cancel, amend or modify any insurance coverage policy (or reinsurance policy) or self-insurance program maintained by the Company or any of the Company Subsidiaries that is not simultaneously replaced by a comparable amount of insurance coverage; (t) recognize any union, works council, or other labor organization as the representative of any of the employees of the Company or any Company Subsidiary, or enter into any new or amended Collective Bargaining Agreement except, as to each of the foregoing, as required by applicable Law, make ; (u) take any action that would result in a change to the Company Benefit Plans; conversion rate of the Convertible Notes from that rate set forth in Section 3.3(b)(viii); (ixv) modify its posted privacy policies or the security of its IT Systems used in its business, in each case, in any materially adverse manner, except as required by applicable Law; (w) terminate, cancel, materially amend or materially modify any Real Property Lease; (x) otherwise enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect Contract to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; or (xiv) commit or agree to take do any of the actions described in this Section 5.1. (d) Section 5.1(d) foregoing, or legally authorize any of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expendituresforegoing.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business of the Company and its the Subsidiaries shall be conducted only in, and the Company and its the Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, (ii) the Company and its the Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons with which the Company or its the Subsidiaries has have significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon (A) the exercise of Company Options outstanding as of the date of this Agreement Agreement; (v) willfully or knowingly take any action that would make the Company's representations and warranties set forth in Article III not true and correct in all material respects; or (Bvi) take any action that would, or would reasonably be expected to, result in any of the exercise of warrantsconditions set forth in Article VI not being satisfied. (c) Except as set forth in Section 5.1(c) of the Company Disclosure ScheduleLetter, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) amend its articles certificate of incorporation (including any certificate of designations attached thereto) or bylaws (or other equivalent organizational documents); (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; Company (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company Subsidiary or between the Company and any of its Subsidiaries Subsidiary (other than loans or advances less than $100,000 50,000 made in the ordinary course of business consistent with past practice); (iv) except as permitted in SECTION 5.5(B), merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (dby SECTION 5.1(D)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 100,000 or greater or enter into any partnership, joint venture or similar arrangement; (v) change any material accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s 's independent auditors; (vi) make any change in employment terms for any of its directors or officers; (vii) 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 Company or its the Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) other than as required by applicable Law, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xix) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March December 31, 20052004; (xiixi) other than a the renewal in the normal ordinary course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiiixii) make or change any election with respect to Taxes or change any accounting method, file any claim for refund or any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; (xiii) apply for or otherwise seek to obtain any License issued or granted by the FCC; or (xiv) commit or agree to take any of the actions described in this Section SECTION 5.1. (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its the Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.

Conduct of the Business Pending the Merger. From and after the date of this Agreement and prior to the Effective Time, except as otherwise contemplated or permitted by this Agreement or provided in Section 5.1 of the Company Disclosure Letter or unless Parent shall otherwise consent in writing (awhich consent shall not be unreasonably withheld with regard to clauses (vii), (viii), (ix), (xii), (xiii), (xiv), (xv), (xvi) The and (xix) of paragraph (b) below, and paragraph (c) below to the extent it relates to such enumerated clauses of paragraph (b)), the Company covenants and agrees that between the date of this Agreement and the Effective Time: (a) the Company shall, unless Parent and shall otherwise agree in writing, cause each of the Subsidiaries to: (i) the conduct its business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, operations in the ordinary course of business and in a manner consistent with prior practice, ; (ii) timely file with the Company and its Subsidiaries shall SEC any report, form, schedule or proxy statement required by applicable law to be filed after the date hereof; and (iii) use all commercially reasonable efforts to maintain and preserve substantially intact their its current business organizationsorganization, to keep available the services of their its current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons with which the Company or its the Subsidiaries has significant have material business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Actrelationships. (b) The Company covenants and agrees that between Without limiting the date generality of this Agreement and the Effective TimeSection 5.1(a), the Company shall not, nor and shall the Company not permit any of its the Subsidiaries to, : (i) declare or pay any dividends on on, or make other distributions (whether in cash, stock or property) in respect of of, any of its capital stock, except for dividends by a wholly wholly-owned Subsidiary of the Company to the Company or another wholly wholly-owned Subsidiary of the Company; ; (ii) split, combine combine, subdivide or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; ; (iii) repurchase or otherwise acquire acquire, encumber, pledge, dispose of or otherwise transfer any shares of its capital stock; stock or other securities or other rights convertible or exchangeable into or exercisable for any shares of its capital stock or such securities or other rights or any of its outstanding indebtedness, or offer to do the same; (iv) issue, deliver deliver, grant or sell, or authorize or propose the issuance, delivery or sale of, sell any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon (A) upon the exercise of Company Warrants or Company Options outstanding as of the date of this Agreement and Agreement; or (B) upon the exercise conversion of warrants.any Company Preferred Stock, in each case in accordance with their respective terms; (c) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (iv) amend its articles certificate of incorporation (including any certificate of designations attached thereto) or bylaws (or other equivalent organizational documents; ); (iivi) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person or sell any debt securities or warrants or rights to acquire any debt securities of another person, other than (A) borrowings under existing lines of credit (or under any refinancing outstanding on the date of such existing lines) this Agreement; or (B) inter-company indebtedness in the ordinary course of business owing to, or guaranties of indebtedness owing to, the Company; ; (iiivii) make except for those leases that have aggregate lease payments not exceeding $500,000 per annum, enter into any loans lease of real property or advances to any other person other than loans lease (excluding leases of unused fiber(s), or advances between portions thereof, requiring installation and operation by the party obtaining the right to use such fiber of electronic equipment in order to transmit communication signals by means of such fiber (“Dark Fiber”), which shall be governed by clause (viii) or (xii) below as applicable); or create any Subsidiaries material Liens on the property of the Company or between the Company and any of its the Subsidiaries in connection with any indebtedness thereof; (other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); viii) (ivA) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 by clause (d)xii) below) or sell dispose of any business or assets in a single transaction or series of transactions transactions, in which the aggregate consideration is $200,000 750,000 or greater greater, or (B) enter into any partnership, joint venture or similar arrangement; , or (vC) dispose, in any manner, of any Dark Fiber; (ix) change any material accounting policies or methods of accounting in effect used by the Company at June September 30, 20052006, except as required by the SEC or as required by GAAP as concurred with by the Company’s independent auditors; or other applicable Law; (vi) make any change in employment terms for any of its directors or officers; (viix) alter, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to to, or cause or permit the acceleration of rights, benefits or payments under any Company Plans with respect to, current or future employees, directors directors, officers or affiliates of the Company or its the Subsidiaries, other than with respect to alterations alterations, amendments or amendments creations made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; Law; (viiixi) other than as required by applicable Law, make adopt any change to new employee benefit plan or amend in any material respect any Company Benefit Plan in existence on the date of this Agreement; (xii) incur capital expenditures in excess of $250,000 in the aggregate that are not contemplated by the capital budget set forth in Section 5.1 of the Company Benefit Plans; Disclosure Letter (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; periods after December 31, 2007, that are not consistent in amount and type with such capital budget for 2007 or commitments entered into during 2007 in accordance with this Agreement); (xxiii) acquirewaive, release, assign, settle or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle compromise any material claim, action or proceedingLitigation, except to the extent subject to and not in excess of reserves that relate to the matter being settled such Litigation existing as of March 31, 2005; 2007; (xiixiv) other than a renewal in the normal ordinary course of businessbusiness consistent with prior practice, amend in any material respect, waive any of its material rights under, or enter into any agreementsMaterial Contract (provided that customer contracts that are Material Contracts shall be governed by clause (xix) below, arrangements Material Contracts relating to the disposition of Dark Fiber shall be governed by clause (viii) above, and Material Contracts relating to capital expenditures shall be governed by clause (xii) above, rather than by this clause (xiv)); (xv) fail to maintain with financially responsible insurance companies insurance in such amounts and against such risks and losses as are consistent with past practices in all material respects; (xvi) (A) make or commitments rescind any express or deemed election relating to Taxes; (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes for an amount in excess of $250,000 except to the extent subject to and not in excess of reserves that relate to such claims, actions, suits, litigation, proceedings, arbitrations, investigations, audits or controversies relating to Taxes existing as of March 31, 2007; (C) file an amended Tax Return; (D) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment or (E) change (or make a request to any Tax Authority to change) in any respect any of its methods of accounting for Tax purposes, other than a change required by applicable Law; (xvii) unless in the good faith opinion of its Board of Directors, after consultation with its outside legal counsel, complying with the following provisions would be inconsistent with the fiduciary duties of such Board of Directors and only then if the taking of such actions would not violate any of the other terms of this Agreement, terminate, amend, modify or waive any provision of any confidentiality or standstill agreement (provided that such restrictions shall not apply to non-disclosure or confidentiality agreements entered into in the ordinary course of business with third parties that are not material in scope) to which Parent or any of the Subsidiaries is a party; and during such period fail to enforce, to the fullest extent permitted under applicable Law, the provisions of such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court of the United States of America or any state having jurisdiction; (xviii) enter into any “non-compete” or similar agreement that would be required restrict the businesses of the Surviving Corporation or its subsidiaries following the Effective Time or that would in any way restrict the businesses of Parent or its affiliates (excluding the Surviving Corporation and its subsidiaries) in any material respect; (xix) (A) other than in the ordinary course of business (I) amend in any material respect or (II) waive any of its material rights under any customer contract, or (B) enter into any customer contract or amendment to be disclosed any customer contract, in Section 3.14 the case of (A) or Section 3.22 (B) incorporating terms or conditions materially inconsistent with the Company’s ordinary course business practices since January 1, 2006 (including, but not limited to, terms such as pricing, discounts, timing of customer payments or discounts, service types, or capital commitments); provided, however, that the Company and its Subsidiaries may so amend or waive rights under customer contracts and enter into customer contracts incorporating terms or conditions that are not materially consistent with the Company’s ordinary course of business practices since January 1, 2006 if the aggregate effect of such amendments, waivers and customer contracts that are not materially consistent with the Company’s ordinary course of business practices on Adjusted Consolidated Revenue or EBITDA of the Company Disclosure Letter; during the Testing Period (xiii) make or change any election with respect as defined below), in each case as calculated to Taxes or change any accounting methoddetermine a Financial Material Adverse Effect, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes is less than 1% of the Company Adjusted Consolidated Revenue or any SubsidiaryEBITDA, respectively, for the applicable Testing Period set forth on Part B or Part C, as applicable, of Schedule 8.11 hereof; or or (xivc) commit or agree to take any of the actions described in this Section 5.1. 5.1 (d) Section 5.1(dother than as permitted in clause (xii) of Section 5.1(b)). Nothing contained in this Agreement (including, without limitation, this Section 5.1) is intended to give Parent, directly or indirectly, the right to control or direct the Company’s or any of the Subsidiaries’ operations prior to the Effective Time and nothing in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or any of its subsidiaries’ operations. Prior to the Effective Time, each of Parent, Buyer and the Company Disclosure Letter sets forth shall exercise, consistent with the projected capital expenditures for the Company terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expendituressubsidiaries’ respective operations.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, Time unless Parent Buyer shall otherwise agree in writing, (i) the business of the Company and its the Subsidiaries shall be conducted only in, and the Company and its the Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, (ii) the Company and its the Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons with which the Company or its the Subsidiaries has significant have business relations, and (iii) the Company and the Subsidiaries will comply in all material respects with all applicable Laws and regulations wherever its their business is conducted, including including, without limitation, the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act, the Exchange Act or the Exchange Xxxxxxxx-Xxxxx Act. (b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Buyer shall otherwise agree in writing, the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) declare or pay any dividends on or make other distributions (whether in cash, stock or property) in respect of any of its their capital stock, except for quarterly dividends consistent with past practice and for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the CompanySubsidiary; (ii) split, combine or reclassify any of its their capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its their capital stock; (iii) repurchase or otherwise acquire any shares of its their capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its their capital stock or any securities convertible into any such shares of its their 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 (A) issuance of shares of Company Common Stock upon (A) the exercise of Company Options outstanding as of the date of this Agreement and the issuance of restricted shares of Company Common Stock pursuant to outstanding Company Restricted Stock Awards and (B) issuance of shares of Company Common Stock pursuant to purchase rights outstanding as of the exercise date of warrantsthis Agreement under the ESPP and (C) acquisitions of Company Common Stock by Company Benefit Plans that are 401(k) plans; or (v) take any action that would, or could reasonably be expected to, result in any of the conditions set forth in Article VI not being satisfied. (c) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless Buyer shall otherwise agree in writing or as otherwise contemplated by this Agreement, the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) amend its articles certificate 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) borrowings under existing lines trade payables incurred in the ordinary course of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Companybusiness consistent with past practice; (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company or between the Company and any of the Subsidiaries; (iv) mortgage or pledge any of its Subsidiaries assets or properties (other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); (ivv) merge or consolidate with any other entity in any transaction, transaction or acquire any business or assets (other than capital expenditures permitted by Section 5.1 assets acquired in the ordinary course of business consistent with past practice); (d)vi) or sell any business or assets (other than inventory sold in the ordinary course of business consistent with past practice) in a single transaction or series of transactions in which the aggregate consideration is $200,000 500,000 or greater or enter into any partnership, joint venture or similar arrangementgreater; (vvii) change any material its accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditorsGAAP; (viviii) except as contemplated by this Agreement with respect to any Benefit Agreement, make any change in employment terms for any of its directors directors, officers, employees or officersconsultants which would create material additional Company liability; (viiix) except as contemplated by this Agreement with respect to any Benefit Agreement, alter, amend or enter into any agreement which would create any material obligations (including entering into any agreements with respect to any aspiration achievement incentive awards) with respect to compensation, severance, benefits, change of control payments or any other payments to employees, directors officers, directors, affiliates or affiliates consultants of the Company or its the Subsidiaries; (x) except as required by Law or required for a merger of any Company Benefit Plans or as contemplated by this Agreement, make any material change to the Company Benefit Plans; (xi) amend or cancel or agree to the amendment or cancellation of any Material Contract; (xii) pay, loan or advance (other than with respect to alterations the payment of compensation, directors' fees or amendments made with respect to non-officers and non-directors reimbursement of expenses in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; (viiipractice) other than as required by applicable Law, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquireamount to, or participate in sell, transfer or lease any auction properties or other process related to the acquisition ofassets (real, personal communications service licenses or wireless spectrum; (ximixed, tangible or intangible) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of business, amend in any material respect, waive any of its material rights underto, or enter into any agreementsagreement with, arrangements any of its officers or commitments that would be required to be disclosed in Section 3.14 directors or Section 3.22 any "affiliate" or "associate" of the Company Disclosure Letterany of its officers or directors; (xiii) make form or change commence the operations of any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company business or any Subsidiarycorporation, partnership, joint venture, business association or other business organization or division thereof; or (xiv) commit make any material tax election or agree to take settle or compensate any tax liability involving amounts in excess of $100,000 in the actions described in this Section 5.1. aggregate; (dxv) Section 5.1(d) of the Company Disclosure Letter sets forth the projected make any capital expenditures which are in excess of $250,000; (xvi) enter into any agreements providing for payments (other than in the Company and its Subsidiaries on a consolidated basis from ordinary course of business consistent with past practice) which are in excess of $250,000; (xvii) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or litigation (whether or not commenced prior to the date of this Agreement), or modify the terms of any existing settlement agreement or arrangement (other than in amounts not exceeding, net of expected insurance recovery, an aggregate of $500,000); (xviii) enter into, modify or extend any collective bargaining agreement or other contract, arrangement, agreement or understanding with a labor union or labor organization; (xix) cancel any material indebtedness, or waive or assign any material claims or material rights; (xx) except as contemplated by Section 3.3(c), amend the Rights Agreement through December 31or take any action with respect to, 2005. The Company agrees that it shall not incur capital expendituresor make any determination under, in the aggregateRights Agreement, in excess including a redemption of such projected capital expendituresthe Rights to facilitate an Acquisition Proposal (as hereinafter defined); or (xxi) authorize, or commit, resolve or agree to take, any of the foregoing actions.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between from the date of this Agreement until the earlier of the (1) Effective Time or (2) termination of this Agreement in accordance with its terms, except as expressly contemplated or permitted by this Agreement or required by applicable Laws or any Governmental Authority of competent jurisdiction or with the prior written approval of Parent or Purchaser (the decision on which shall not be unreasonably delayed), the Company shall, and the Effective Time, unless Parent shall otherwise agree in writingcause each Company Subsidiary to, (i) conduct its business in the ordinary course consistent with past practice and (ii) use its commercially reasonable efforts to keep available the services of the current officers, key employees and consultants of the Company and each Company Subsidiary and to preserve business organizations of the Company and each Company Subsidiary intact and to maintain existing relations and goodwill with customers, suppliers, landlords, advertisement exchange partners, resellers, distributor partners and other persons with whom the Company or any Company Subsidiary has material business relations. From the date of this Agreement until the earlier of the (1) Effective Time or (2) termination of this Agreement in accordance with its terms, except (w) as otherwise expressly contemplated or permitted by this Agreement, (x) with the prior written approval of Parent or Purchaser (the decision on which shall not be unreasonably delayed), (y) as required by applicable Law or any Governmental Authority of competent jurisdiction or (z) as set forth in Section 6.1 of the Disclosure Schedule, the Company will not and will cause the Company Subsidiaries not to, directly or indirectly: (a) amend, permit the adoption of any amendment or otherwise change its Certificate of Incorporation or Bylaws or equivalent organizational documents; (b) issue, sell, pledge, dispose of, grant, subject to any Lien or encumber, or authorize the issuance, sale, pledge, disposition, grant, subjection of any Lien or encumbrance of, any shares of any class of capital stock of the Company or any of the Company Subsidiaries, or any options, calls, warrants, convertible, exercisable or exchangeable securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest or other Company Securities (including any phantom interest and including any Company RSUs, Company Stock Options or voting securities), of the Company or any of the Company Subsidiaries, except for the issuance of Company Shares pursuant to exercises of the Company Stock Options or settlement of Company RSUs outstanding on the date hereof and disclosed in Section 4.3(b) in accordance with their terms in effect on the date hereof; (c) assign, transfer, lease, sell, pledge, license, dispose of, abandon, allow to lapse or expire, or encumber or subject to any material Lien any material assets or properties (which, for the avoidance of doubt, shall include any material Intellectual Property) of the Company or any of the Company Subsidiaries other than (i) non-exclusive licenses of Intellectual Property (other than with respect to Trademarks, Domain Names, and source code) granted by the Company or any Company Subsidiary in the ordinary course of business that would not reasonably be expected to, individually or in the aggregate, materially impair the continued use and operation of the assets to which they relate in the business of the Company and its the Company Subsidiaries shall be conducted only inas presently conducted, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, (ii) expirations of Patents at the Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services end of their current officers and employees and to preserve the current relationships respective statutory terms; (d) disclose any Trade Secret of the Company and its Subsidiaries with customers, suppliers and or any Company Subsidiary other persons with which the Company or its Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required than pursuant to the Securities Act or the Exchange Act.a written Contract containing obligations of confidentiality; (be) The Company covenants and agrees that between the date of this Agreement and the Effective Timedeclare, the Company shall notaccrue, nor shall the Company permit any of its Subsidiaries toset aside, (i) declare make or pay any dividends on dividend or make other distributions (whether distribution, payable in cash, stock stock, property or property) in otherwise, with respect of to any of its capital stock, except for stock (other than dividends by or distributions paid in cash from a wholly owned Company Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company; Company Subsidiary); (iif) reclassify, combine, split, combine subdivide or reclassify redeem, reacquire or purchase or otherwise acquire, directly or indirectly, any of its capital stock or issue any options, calls, warrants or authorize other rights to acquire such capital stock, securities or propose the issuance of any other securities in respect of, interests in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any securities convertible into any such shares of its capital stock, except (i) in accordance with agreements evidencing Company Stock Options or any rightsCompany RSUs outstanding on the date hereof in accordance with their terms on the date hereof, warrants including the Company Stock Plans or options to acquire any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other than the issuance of shares of Company Common Stock (ii) Tax withholdings and exercise price settlements upon (A) the exercise of Company Stock Options or vesting or settlement of Company RSUs outstanding as of on the date of this Agreement and (B) hereof in accordance with their terms in effect on the exercise of warrants.date hereof; (cg) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation acquire or agree to acquire, directly or indirectly (including by merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or acquisition of stock or assets or any certificate other business combination) in any transaction or series of designations attached thereto) transactions, any equity interests in or bylaws business of a corporation, partnership, other business organization or any division thereof or any other equivalent organizational documentsbusiness or person; (ii) incur any indebtedness for borrowed money or guaranty issue any such debt securities, or assume, guarantee, redeem, repurchase, prepay, defease, incur or endorse, or otherwise become liable for (contingently or otherwise), the borrowing obligations of any person, which collectively with then existing indebtedness of another personthe Company as of the time of determination, other than (A) borrowings under existing lines of credit (or under such that the outstanding balance is in excess of, in the aggregate, $28,000,000 at any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Companytime; (iii) make any loans, advances or capital contributions, except for immaterial employee loans or advances for expenses and extended payment terms for customers, in each case subject to any other person other than loans or advances between any Subsidiaries of the Company or between the Company applicable Law and any of its Subsidiaries (other than loans or advances less than $100,000 made only in the ordinary course of business consistent with past practice); (iv) merge make or consolidate with direct to be made any other entity capital investments or equity investments in any transactionentity, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell investments in any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 or greater or enter into any partnership, joint venture or similar arrangementwholly-owned Company Subsidiary; (v) change commit to any material accounting policies or methods non-cancelable future expenditure individually in excess of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditors; $450,000 (vi) make any change in employment terms for any of its directors or officers; (vii) 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 Company or its Subsidiaries, other than with respect to alterations expenditures on real-time bidding exchanges); or amendments made (vi) enter into or amend any Contract with respect to non-officers any matter set forth in this Section 6.1(g); (h) make or change any Tax election, adopt or change any accounting period or any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim or assessment relating to the Company or any of the Company Subsidiaries, surrender or abandon any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of the Company Subsidiaries, destroy or dispose of any books and non-directors records with respect to Tax matters relating to periods beginning before the Effective Time and for which the statute of limitations is still open or under which a record retention agreement is in place with a Governmental Authority of competent jurisdiction; (i) commence, initiate, compromise or settle any litigation, claim, arbitration or other Action, or any actual or threatened litigation, other than settlements or compromises that involve only the payment of monetary damages not in excess of $100,000 individually or $200,000 in the aggregate, except (i) for collections of accounts receivable, (ii) in such cases where the Company in good faith determines that failure to commence such Action would result in the material impairment of a valuable aspect of its business, (iii) as otherwise permitted or required by this Agreement or (iv) to enforce this Agreement; (j) except as required by Law or in the ordinary course of business consistent with past practice practice, enter into any Contract or amendment that would be a Company Material Contract or Lease, or amend or modify in any material respect, or consent to the termination of, any Company Material Contract, or waive or consent to the termination of the Company’s or any Company Subsidiary’s material rights thereunder, in each case, other than the expiration of a Company Material Contract or Lease in accordance with its terms; (k) enter into, amend or terminate any Company Material Contracts described in Sections 4.17(a)(iv), 4.17(a)(v), 4.17(a)(vi) and 4.17(a)(vii) or enter into any CBA; (l) except as required by applicable Law or any Company Benefit Plans as expressly contemplated by in effect on the date of this Agreement and previously provided to Parent, (i) increase, or consented commit to in writing by Parentincrease, the amount of the compensation or benefits payable or to become payable to any employee, officer, director or other individual service provider of the Company or any Company Subsidiary; (viiiii) grant to any employee, officer, director or other individual service provider of the Company or any Company Subsidiary any increase in severance or termination pay; (iii) pay or award, or commit to pay or award, any bonuses or incentive compensation; (iv) enter into any employment, severance, change in control, retention, individual consulting or similar agreement with any employee, officer, director or other individual service provider of the Company or any Company Subsidiary (other than offer letters that provide for at-will employment without any severance, change in control or retention benefits for newly hired employees who are hired in accordance with Section 6.1(m)); (v) establish, adopt, enter into, amend or terminate any Company Benefit Plan; or (vi) take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable to or that may become payable to any employee, officer, director or other individual service provider of the Company or any Company Subsidiary; (i) hire or terminate any employee or other individual service provider whose total annual compensation is in excess of $175,000 or (ii) increase the number of employees of the Company above 370; (n) enter into or materially amend or otherwise modify any Contract or arrangement with persons that are affiliates or are executive officers or directors of the Company; (o) implement any layoffs that could implicate the WARN Act; (p) delay the payment of any trade payables to vendors and other Third Parties or accelerate the collection of trade receivables and other receivables, in each case, outside the ordinary course of business consistent with past practices; (q) terminate, cancel, amend or modify any insurance coverage policy maintained by the Company or any of the Company Subsidiaries that is not simultaneously replaced by a comparable amount of insurance coverage; (r) adopt a plan of complete or partial liquidation or dissolution; (s) other than as required by applicable Lawchanges in GAAP or SEC rules and regulations, make change any change of its methods of accounting or accounting practices in any material respect; (t) establish any new business segment outside of its existing segments; (u) incur any capital expenditures or any obligations or liabilities in respect thereof, or otherwise expend or agree to commit to expend any cash in excess of the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements amounts specified with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal line items set forth in the normal course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in capital expenditures budget set forth on Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; or (xiv) commit or agree to take any of the actions described in this Section 5.1. (d) Section 5.1(d6.1(u) of the Company Disclosure Letter sets Schedule other than as expressly set forth the projected capital expenditures for in such budget; (v) fail to maintain the Company and its Subsidiaries on a consolidated basis from Leased Real Property in substantially the same condition as of the date of this Agreement through December 31Agreement, 2005. The Company agrees that it shall not incur capital expendituresordinary wear and tear, casualty and condemnation excepted; or (w) authorize any of, or commit, resolve, propose or agree in writing or otherwise to do any of the aggregate, in excess of such projected capital expendituresforegoing.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless the Parent shall otherwise agree in writingwriting (and except as expressly contemplated, permitted or required by this Agreement), (i) the business of the Company and its the Subsidiaries shall be conducted only in, and the Company and its the Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, (ii) the Company and its the Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons Persons with which the Company or its the Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Except as set forth in the Company Disclosure Letter, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; (ii) execute or cause to be executed any transactions that may result in a deemed dividend under the Code; (iii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iiiiv) repurchase or otherwise acquire any shares of its capital stock; or (ivv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon pursuant to (A) the exercise of Company Stock Options outstanding as of the date of this Agreement and Agreement, (B) employee deferrals, after tax contributions and matching contributions under the exercise Fritx Xxxpanies, Inc. Salary Investment and Retirement Plan or the Fritx Xxxpanies, Inc. Employee Stock Purchase Plan as in effect on the date hereof, (C) new Company Stock Options granted at fair market value and consistent with past practices under the Fritx Xxxpanies, Inc. 1992 Omnibus Equity Incentive Plan in the ordinary course, which shall not exceed in the aggregate options to purchase 1,000,000 shares of warrants. Company Common Stock, (cD) Except as new Company Stock Options granted at fair market value and in the ordinary course consistent with past practices to new employees, which shall not exceed in the aggregate per month options to purchase 25,000 shares of Company Common Stock or 10,000 shares to any individual, or (E) the Rights Plan; (vi) take any action that would make the Company's representations and warranties set forth in Section 5.1(cArticle III not true and correct in all material respects; (vii) take any action that would, or could reasonably be expected to, result in any of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, conditions set forth in Article VII not being satisfied; (iviii) amend its articles certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (iiix) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personPerson, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iiix) make any loans or advances to any other person Person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries (Subsidiary and other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); (ivxi) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 1,000,000 or greater or enter into any partnership, joint venture or similar arrangementgreater; (vxii) change any material its accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditorsGAAP; (vixiii) make any change in employment terms for any of its directors or officers; (viixiv) 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 Affiliates of the Company or its the Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by the Parent; (viiixv) other than as required by applicable Law, make any change to the Company Benefit Plans, except those changes required by applicable Laws; (ixxvi) enter into sell, license, mortgage or otherwise encumber or subject to any leasing lien or licensing agreements (otherwise dispose of any material properties or assets, other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal ordinary course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election business consistent with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiarypast practice; or (xivxvii) commit or agree to take any of the actions described in this Section 5.16.1(b). (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless the Parent shall otherwise agree in writingwriting (and except as expressly contemplated, permitted or required by this Agreement), (i) the business of the Company and its the Subsidiaries shall be conducted only in, and the Company and its the Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, (ii) the Company and its the Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons Persons with which the Company or its the Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon (A) the exercise of Company Stock Options outstanding as of the date of this Agreement Agreement; (v) take any action that would make the Company's representations and (B) the exercise of warrants. (c) Except as warranties set forth in Section 5.1(cArticle IV not true and correct in all material respects; (vi) take any action that would, or could reasonably be expected to, result in any of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, conditions set forth in Article VII not being satisfied; (ivii) amend its articles certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (iiviii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personPerson, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iiiix) make any loans or advances to any other person Person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries (Subsidiary and other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); (ivx) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 100,000 or greater or enter into any partnership, joint venture or similar arrangementgreater; (vxi) change any material its accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditorsGAAP; (vixii) make any change in employment terms for any of its directors or officers; (viixiii) 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 Affiliates of the Company or its the Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by the Parent; (viiixiv) other than as required by applicable Law, make any change to the Company Benefit Plans; (ixxv) enter into sell, license, mortgage or otherwise encumber or subject to any leasing lien or licensing agreements (otherwise dispose of any material properties or assets, other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal ordinary course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election business consistent with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiarypast practice; or (xivxvi) commit or agree to take any of the actions described in this Section 5.16.1(b). (dc) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company The Parent covenants and its Subsidiaries on a consolidated basis from agrees that between the date of this Agreement through December 31and the Effective Time, 2005. The unless the Company agrees that it shall otherwise agree in writing (and except as expressly contemplated, permitted or required by this Agreement, including except for the Parent Required Vote contemplated by this Agreement), the Parent shall not incur capital expenditures, in approve any transaction or agreement that would require the aggregate, in excess approval or consent of such projected capital expendituresits stockholders.

Conduct of the Business Pending the Merger. Except as contemplated by this Agreement or as expressly permitted pursuant to Section 5.1 of the Company Disclosure Letter, without the prior written consent of Parent: (a) The Company covenants and agrees that that, between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, in the ordinary course of business and in a manner consistent with prior practice, (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customersmaterial merchandise vendors and suppliers, suppliers landlords and other persons and entities with which the Company or its Subsidiaries has significant material business relations, and (iii) the Company and its Subsidiaries will comply with all applicable Laws in all material respects with all applicable Laws wherever its business is their respective businesses are conducted, including including, without limitation, the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act and the rules and regulations promulgated thereunder or the Exchange ActAct and the rules and regulations promulgated thereunder. (b) The Company covenants and agrees that between Between the date of this Agreement and the Effective Time, Time the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; , (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; , other than pursuant to any stockholders' rights agreement or similar plan or agreement entered into by the Company which by its terms provides that none of Parent, Sub or their respective affiliates shall be deemed to be an "Acquiring Person" by virtue of Parent and Sub entering into this Agreement and consummating the transactions contemplated hereby and which shall not limit or impair the ability of Parent or Sub to consummate the Merger as contemplated by this Agreement, (iii) directly or indirectly redeem, repurchase or otherwise acquire any shares of its capital stock or any right to acquire capital stock; or , (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 (x) the issuance of shares of Company Common Stock upon (A) the exercise of Company Options outstanding as of the date of this Agreement Agreement, (y) options and other equity awards granted in the ordinary course of business to any new employee hired after the date hereof but prior to the date of the Closing; provided, that the shares of Common Stock issuable upon exercise of such options and award grants do not exceed 20,000 in the aggregate for each new employee or 25,000 in the aggregate for all new employees, or (Bz) the exercise issuance of warrantsthe options and equity awards listed in the Company Disclosure Schedule, or (v) take any action that could reasonably be expected to result in any of the conditions set forth in Article VI hereof not being satisfied. (c) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the Company covenants and agrees that between Between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its articles the Company Certificate of incorporation (including any certificate of designations attached thereto) Incorporation or bylaws the Company Bylaws or the other equivalent organizational documents; documents of the Subsidiaries, (ii) create, assume or incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) of up to $7,000,000 in the aggregate, (B) borrowings pursuant to letters of credit of up to $12,000,000 in the aggregate, or (BC) indebtedness owing to, or guaranties of indebtedness owing to, the Company; , (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries Subsidiaries, (other than loans iv) mortgage or advances less than $100,000 made pledge any of its assets or properties with an aggregate book value, individually or in the ordinary course aggregate, in excess of business consistent with past practice); $50,000, (ivv) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business or assets in a single transaction or series of transactions which have an aggregate value of $50,000 or greater, other than sales of inventory in which the aggregate consideration is $200,000 or greater or enter into any partnershipordinary course of business consistent with past practices, joint venture or similar arrangement; (vvi) change any material its accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditors; GAAP, (vivii) make any payments to, or change in any employment terms for for, any of its directors or officersofficers other than the payment of compensation or directors' fees in the ordinary course of business; provided, that the Company shall be permitted to advance expenses to directors or officers as contemplated by the indemnification obligations set forth in the Company Certificate of Incorporation or Company Bylaws or pursuant to any employment agreement with the Company previously delivered to Parent; provided, further that the Company shall be permitted to reimburse officers and directors for reasonable expenses in the ordinary course of business consistent with past practices, (viiviii) 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 Company or its Subsidiaries, other than with respect to alterations or amendments increases in wages for hourly employees made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice practices, or as required by applicable Law enter into any new, or as expressly contemplated by this Agreement or consented to in writing by Parent; amend any existing, employment agreements, (viiiix) other than as required by applicable Law, make any change to the Company Benefit Plans; Plans other than as required by Law, (ixx) amend or cancel or agree to the amendment or cancellation of any Material Contract or, without the prior written consent of Parent, execute any new contract or agreement or enter into any leasing arrangement which would constitute a Material Contract hereunder, (xi) pay, loan or licensing agreements advance (other than the License Assignment and payment of compensation, directors' fees or reimbursement of reasonable expenses in the Spectrum Lease), take-or-pay arrangements ordinary course of business consistent with past practices or other affiliations, alignments the advancement of expenses as contemplated by the indemnification obligations of the Company Certificate of Incorporation or agreements with respect to the FCC Licenses; (x) acquireCompany Bylaws, or participate in pursuant to any auction employment agreement with the Company previously delivered to Parent) any amount to, or other process related to the acquisition ofsell, personal communications service licenses transfer or wireless spectrum; (xi) settle lease any material claim, action properties or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of business, amend in any material respect, waive any of its material rights underassets to, or enter into any agreementsagreement with any of its officers or directors or any "affiliate" or "associate" of any of its officers or directors, arrangements (xii) form or commitments that would be required to be disclosed in Section 3.14 commence the operations of any business or Section 3.22 of the Company Disclosure Letter; any corporation, partnership, joint venture, business association or other business organization or division thereof, (xiii) make except as set forth in Section 5.6 hereof, or change any election with respect to Taxes or change any accounting methodmatters covered by insurance to the extent of such insurance proceeds, file any amended Tax Returnpay, discharge, settle or satisfy any Tax dispute Litigation (whether or waive not commenced prior to the date of this Agreement) involving amounts in excess of $100,000 in the aggregate, (xiv) adopt a plan of complete or extend partial liquidation or resolutions providing for or authorizing a liquidation, dissolution, reorganization or similar transaction, (xv) adopt a stockholders' rights agreement or any similar plan or agreement which limits or impairs the statute ability to purchase, or become the direct or indirect beneficial owner of, shares of limitations relating to Company Common Stock or any Taxes other equity or debt securities of the Company or any Subsidiary; of its Subsidiaries, other than any stockholders' rights agreement or similar plan or agreement entered into by the Company which by its terms provides that none of Parent, Sub or their respective affiliates shall be deemed to be an "Acquiring Person" by virtue of Parent and Sub entering into this Agreement and consummating the transactions contemplated hereby and which shall not limit or impair the ability of Parent or Sub to consummate the Merger as contemplated by this Agreement, (xivxvi) commit make any capital expenditures in an amount greater than $500,000 which are inconsistent with, or not provided for by, the Company's 2004 budget contained in the Company Disclosure Letter, (xvii) make any change to their respective lines of business, (xviii) enter into a lease or sublease with respect to any new store or new facility of the Company or any existing Company Facility, (xix) renew any Company Lease or agree to take a renewal rate for any Company Lease, (xx) open any new store or new facility of the Company, close any existing Company Facility or materially change the operations of any existing Company Facility, or (xxi) enter into any contract, agreement or other arrangement to do or engage in any of the actions described in this Section 5.1foregoing. (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.

Conduct of the Business Pending the Merger. Between the date of this Agreement and the Effective Time (ai) The the Company covenants shall, and agrees that shall cause the Company Subsidiaries to, conduct the businesses of the Company and the Company Subsidiaries only in the ordinary course of business and in a manner consistent with past practice and in compliance in all material respects with all applicable Laws; (ii) the Company shall use commercially reasonable efforts to preserve substantially intact the business organization of the Company and the Company Subsidiaries, to keep available the services of the current officers, employees and consultants of the Company and the Company Subsidiaries and to preserve the current relationships of the Company and the Company Subsidiaries with its customers, suppliers, distributors, licensors, licensees and other persons with which the Company or any of the Company Subsidiaries has business relations; (iii) the Company shall take all necessary actions to cause its required periodic filings to be made with the SEC in a timely manner, including its Quarterly Report on Form 10-Q for the calendar quarter ending March 31, 2015; and (iv) the Company shall not, and shall cause the Company Subsidiaries not to, take any action with an intent to adversely affect or delay in any material respect the ability of either Parent or the Company to obtain any necessary approvals of any regulatory agency or other Governmental Authority required for the Transactions. In addition, and not in limitation of the foregoing, except as (x) expressly contemplated by this Agreement, (y) set forth in Section 6.1 of the Disclosure Schedule or (z) as required in compliance with all applicable Laws, neither the Company nor any of the Company Subsidiaries shall, between the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writingdirectly or indirectly, (i) the business do, or propose to do, any of the Company and its Subsidiaries shall be conducted only in, and following without the Company and its Subsidiaries prior written consent of Parent (which shall not take any action except inbe unreasonably withheld, the ordinary course delayed or conditioned): (a) amend or otherwise change its Certificate of business and in a manner consistent with prior practice, (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company Incorporation or its Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms Bylaws or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act.equivalent organizational documents; (b) The issue, sell, pledge, dispose of, grant or encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of any class of capital stock of the Company covenants or any of the Company Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest (including any phantom interest and agrees that between including any Company RSUs, Company Stock Options or voting securities), of the Company or any of the Company Subsidiaries, except for the issuance of Company Shares pursuant to exercises of the Company Stock Options or vesting of Company RSUs outstanding on the date hereof as disclosed in Section 4.3(b) or in accordance with Section 6.1(b) of the Disclosure Schedule in accordance with the terms of those Company Stock Options or Company RSUs as in effect on the date of this Agreement and the Effective Timeand, subject to Section 3.7(d), the issuance of Company shall not, nor shall Shares pursuant to the Company permit ESPP; (c) transfer, lease, sell, pledge, license, dispose of, abandon, allow to lapse, or encumber any material assets or properties of the Company or any of the Company Subsidiaries, except in the ordinary course of business; (d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its Subsidiaries tocapital stock (other than dividends or distributions made by a Company Subsidiary to the Company or another Company Subsidiary); (e) reclassify, (i) declare combine, split, subdivide or pay any dividends on redeem, or make other distributions (whether in cashpurchase or otherwise acquire, stock directly or property) in respect of indirectly, any of its capital stock, except for dividends by a wholly owned Subsidiary of the (i) in accordance with agreements evidencing Company to the Stock Options or Company RSUs or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock Tax withholdings and exercise price settlements upon (A) the exercise of Company Stock Options outstanding as or vesting of the date of this Agreement and (B) the exercise of warrants.Company RSUs; (cf) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation acquire, directly or indirectly (including by merger, consolidation, or acquisition of stock or assets or any certificate of designations attached thereto) other business combination), any corporation, partnership, other business organization or bylaws any division thereof or any other equivalent organizational documentsbusiness, or any equity interest in any person; (ii) incur any indebtedness for borrowed money or guaranty issue any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing todebt securities, or guaranties of indebtedness owing toassume, guarantee or endorse, or otherwise become responsible for (contingently or otherwise), the Companyobligations of any person; (iii) make any loans, advances or capital contributions, except for employee loans or advances for travel expenses and extended payment terms for customers, in each case subject to applicable Law and only in the ordinary course of business; (iv) make, authorize, or make any commitment with respect to any other person capital expenditure, in the aggregate for the Company and the Company Subsidiaries taken as a whole, in excess of $1,000,000 per fiscal quarter; (v) make or direct to be made any capital investments or equity investments in any entity, other than loans investments in any wholly-owned Company Subsidiary; or advances between (vi) enter into or amend any Subsidiaries Contract, commitment or arrangement with respect to any matter set forth in this Section 6.1(f); (g) except to the extent required by (i) applicable Law, (ii) the existing terms of any Plan as in existence on the date hereof included as a Disclosed Employee Arrangement, or (iii) the express terms of this Agreement: (i) increase the compensation payable or to become payable (including bonus grants) or increase or accelerate the vesting of any benefits provided, or pay or award any payment or benefit not required as of the date hereof by a Plan as existing on the date hereof and disclosed in Section 6.1(g) of the Disclosure Schedule, to its directors, officers or employees or other service providers, (ii) grant any new severance or termination pay or benefits to, or enter into any employment, severance, retention, change in control, consulting or termination Contract with, any director, officer or other employee or other service providers of the Company or between of any Company Subsidiary, subject to Section 6.1(g) (iv) below, other than offer letters, employment agreements, or consulting agreements entered into in the ordinary course of business that are terminable at will and without material liability to the Company or any Company Subsidiary, (iii) establish, adopt, enter into or amend any collective bargaining, work council, work force, bonus, profit-sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, Contract, trust, fund, policy or arrangement for the benefit of any director, officer or employee or other service providers (including the ESPP), except as necessary to maintain tax-qualified status or tax-favored treatment, or (iv) hire, elect or appoint any officer, director or employee holding a position of vice president or above; (h) except as publicly announced prior to the date hereof, announce, implement or effect any reduction in labor force greater than five percent (5%) of the total Company headcount, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of the Company or any Company Subsidiary, other than routine employee terminations; (i) enter into a new line of business that (A) is material to the Company and the Company Subsidiaries taken as a whole, or (B) represents a category of revenue that is not discussed in Item 1 of the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2014; (j) make or change any Tax election, adopt or change any accounting period or any accounting method with respect to Taxes, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim or assessment relating to the Company or any of its Subsidiaries the Company Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of the Company Subsidiaries, destroy or dispose of any books and records with respect to Tax matters relating to periods beginning before the Effective Time and for which the statute of limitations is still open or under which a record retention agreement is in place with a Governmental Authority; (k) settle any material claim, arbitration or other Action; (l) except as required by Law, enter into any Contract or amendment that would be a Company Material Contract, or amend or modify in any material respect in a manner that is adverse to the Company or any Company Subsidiary, or consent to the termination of, any Company Material Contract, or waive or consent to the termination of the Company’s or any Company Subsidiary’s material rights thereunder, in each case other than loans the termination or advances less than $100,000 made expiration of a Company Material Contract in accordance with its terms; (i) except in the ordinary course of business consistent with Company’s or any Company Subsidiary’s past practice); practices, enter into any Contracts (ivA) merge under which Company or consolidate any Company Subsidiary grants or agrees to grant to any Third Party any non-exclusive license, release, immunity or other right with respect to any other entity in any transaction, or acquire Owned Company Intellectual Property (other than capital expenditures permitted by Section 5.1 Customer Licenses), (d)B) under which Company or sell any business Company Subsidiary establishes with any Third Party a joint venture, strategic relationship, or assets in a single transaction partnership pursuant to which Company agrees to develop or series of transactions in create (whether jointly or individually) any material Intellectual Property, products or services; or (C) under which the aggregate consideration is $200,000 Company or greater any Company Subsidiary becomes obligated to pay any royalties or other amounts, or offer any discounts, to any Third Party; or (ii) enter into any partnershipContracts (A) that will cause or require (or purport to cause or require) the Surviving Corporation or Parent to grant to any Third Party any license, joint venture covenant not to xxx, immunity or similar arrangementother right with respect to or under any of the Intellectual Property or Intellectual Property Rights of Parent; or (vB) change under which Company or any Company Subsidiary grants or agrees to grant to any Third Party any assignment or exclusive license with respect to any Owned Company Intellectual Property; (n) enter into or amend any Contract pursuant to which any other party is granted, or that otherwise subjects the Company or any Company Subsidiary or Parent or any of its subsidiaries to, any non-competition, “most-favored nation”, exclusive marketing or other exclusive rights of any type or scope that materially restrict the Company or any Company Subsidiary or, upon completion of the Offer or any other Transaction, Parent or any of its subsidiaries, from engaging or competing in any line of business or in any location; (o) enter into any lease, sublease or license for real property or material accounting policies operating lease; (p) enter into or methods amend or otherwise modify any Contract or arrangement with persons that are affiliates or are executive officers or directors of accounting in effect at June 30, 2005the Company, except as otherwise permitted or required by GAAP this Agreement; (q) commence any material Action, except as concurred with otherwise permitted or required by this Agreement; (r) delay the Company’s independent auditors; (vi) make payment of any change trade payables to vendors and other Third Parties or accelerate the collection of trade receivables and other receivables by offering discounts or otherwise, in employment terms for any of its directors or officers; (vii) 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 Company or its Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in each case outside the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; practices; (viiis) other than as required by applicable Lawterminate, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of businesscancel, amend in or modify any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of insurance coverage policy maintained by the Company or any Subsidiaryof the Company Subsidiaries that is not simultaneously replaced by a comparable amount of insurance coverage; or or (xivt) commit or agree otherwise make a commitment to take do any of the actions described in this Section 5.1foregoing. (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.

Conduct of the Business Pending the Merger. (a) The Company covenants From and agrees that between after the date of this Agreement and the Effective Time, unless Parent shall otherwise agree in writing, (i) the business of the Company and its Subsidiaries shall be conducted only in, and the Company 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 Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between the date of this Agreement and until the Effective Time, the Company shall, and shall cause each of the Subsidiaries to, conduct its business solely in the ordinary course consistent with past practice, and shall not, nor shall the Company permit any of its the Subsidiaries to, except as required or permitted pursuant to the terms hereof or as may occur in the ordinary course of business consistent with past practice: (i) declare make any material change in the conduct of its businesses and operations or pay enter into any dividends on material transaction; (ii) make any change in its Certificate of Incorporation or make other distributions By- laws; (whether in cash, iii) issue any additional shares of capital stock or property) equity securities (other than upon exercise of options or convertible securities, in each case outstanding on the date hereof), issue or grant any option, warrant or right to acquire any capital stock or equity securities, issue any security convertible into or exchangeable for its capital stock, alter in any material respect the terms of any of its capital stockoutstanding securities, except for dividends by a wholly owned Subsidiary or make any change in its outstanding shares of the Company to the Company or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue in its capitalization, whether by reason of a reclassification, recapitalization, stock split or authorize combination, exchange or propose the issuance readjustment of any other securities in respect ofshares, in lieu of or in substitution for shares of its capital stock; (iii) repurchase stock dividend or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any stock appreciation rights, phantom stock options or similar instruments; (iv) incur, assume or guarantee any indebtedness for borrowed money, issue any notes, bonds, debentures or other corporate securities or grant any option, warrant or right to purchase any thereof; (v) make any sale, assignment, transfer, abandonment or other conveyance of any of its assets or any part thereof; (vi) subject any of its assets, or any part thereof, to any lien or suffer such to be imposed other than such liens as may arise by operation of law; (vii) redeem, retire, purchase or otherwise acquire, directly or indirectly, any shares of its capital stock or declare, set aside or pay any securities convertible into any dividends or other distribution in respect of such shares of its capital stockshares, except for dividends by a wholly owned Subsidiary to the Company or any rights, warrants or options other wholly owned Subsidiary; (viii) take any other action that would cause any of the representations and warranties made in this Agreement not to acquire remain true and correct; or (ix) commit itself to do any such shares or convertible securities or any stock appreciation rights, phantom stock plans or stock equivalents, other than of the issuance of shares of Company Common Stock upon foregoing. (Ab) the exercise of Company Options outstanding as of From and after the date of this Agreement and (B) the exercise of warrants. (c) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and until the Effective Time, the Company shall not, nor shall use its best efforts to preserve substantially intact the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries business organization of the Company or between and the Subsidiaries, to keep available the services of the current officers and employees of the Company and any of its the Subsidiaries (other than loans or advances less than $100,000 made in and to preserve the ordinary course of business consistent with past practice); (iv) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 or greater or enter into any partnership, joint venture or similar arrangement; (v) change any material accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditors; (vi) make any change in employment terms for any of its directors or officers; (vii) 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 current relationships of the Company or its Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) other than as required by applicable Law, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease)Subsidiaries with customers, take-or-pay arrangements or suppliers and other affiliations, alignments or agreements persons with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; or (xiv) commit or agree to take any of the actions described in this Section 5.1. (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for which the Company and its the Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditureshave significant business relations.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, except as otherwise provided in Section 5.1(a) of the Company Disclosure Letter or unless Parent shall otherwise agree consent in writingwriting (such consent not to be unreasonably withheld), (i) the business of the Company and its the Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, in the ordinary course of business and in a manner consistent with prior practice, (ii) the Company and its the Subsidiaries shall shall, except as otherwise expressly restricted by the terms of this Agreement and not consented to by Parent in writing within a reasonable time period following a request by the Company to Parent for such consent, use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons with which the Company or its the Subsidiaries has have significant business relationsrelations such that their ongoing businesses shall not be impaired in any material respect at the Effective Time, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, except as otherwise provided in Section 5.1(a) or Section 5.1(b) of the Company Disclosure Letter, the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon (A) upon the exercise of Company Warrants or Company Options outstanding as of the date of this Agreement and or (B) under the exercise of warrantsESPP as described in Section 1.7. (c) Except as set forth in Section 5.1(c) of the Company Disclosure ScheduleLetter, the Company covenants and agrees that between the date of this Agreement and the Effective TimeTime without the prior written consent of Parent (which consent shall not be unreasonably withheld), the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) amend its articles certificate of incorporation (including any certificate of designations attached thereto) or bylaws (or other equivalent organizational documents); (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company Subsidiary or between the Company and any of its Subsidiaries Subsidiary (other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); (iv) except as permitted in Section 5.5(b), merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by by Section 5.1 (d5.1(d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 or greater or enter into any partnership, joint venture or similar arrangement; (v) change any material accounting policies or methods of accounting in effect at June 30December 31, 2005, except as required by the SEC or as required by GAAP as concurred with by the Company’s independent auditors; (vi) make any change in employment terms for any of its directors or officersofficers or hire any new employee at the vice president, director or senior director level; (vii) 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 Company or its the Subsidiaries, other than with respect to alterations alterations, amendments or amendments creations made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) other than as required by applicable Law, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xix) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March December 31, 2005; (xiixi) other than a the renewal in the normal ordinary course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiiixii) except as required by Law, make or change any election with respect to Taxes or change any accounting method, file any claim for refund or any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; or (xiii) apply for or otherwise seek to obtain any License issued or granted by the FCC; or (xiv) commit or agree to take any of the actions described in this Section 5.1. (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its the Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 20052006. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.

Conduct of the Business Pending the Merger. From and after the date of this Agreement and prior to the Effective Time, except as otherwise contemplated or permitted by this Agreement or provided in Section 5.1 of the Company Disclosure Letter or unless Parent shall otherwise consent in writing (awhich consent shall not be unreasonably withheld with regard to clauses (vii), (viii), (ix), (xii), (xiii), (xiv), (xv), (xvi) The and (xix) of paragraph (b) below, and paragraph (c) below to the extent it relates to such enumerated clauses of paragraph (b)), the Company covenants and agrees that between the date of this Agreement and the Effective Time: (a) the Company shall, unless Parent and shall otherwise agree in writing, cause each of the Subsidiaries to: (i) the conduct its business of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, operations in the ordinary course of business and in a manner consistent with prior practice, ; (ii) timely file with the Company and its Subsidiaries shall SEC any report, form, schedule or proxy statement required by applicable law to be filed after the date hereof; and (iii) use all commercially reasonable efforts to maintain and preserve substantially intact their its current business organizationsorganization, to keep available the services of their its current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons with which the Company or its the Subsidiaries has significant have material business relations, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Actrelationships. (b) The Company covenants and agrees that between Without limiting the date generality of this Agreement and the Effective TimeSection 5.1(a), the Company shall not, nor and shall the Company not permit any of its the Subsidiaries to, : (i) declare or pay any dividends on on, or make other distributions (whether in cash, stock or property) in respect of of, any of its capital stock, except for dividends by a wholly wholly-owned Subsidiary of the Company to the Company or another wholly wholly-owned Subsidiary of the Company; ; (ii) split, combine combine, subdivide or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; ; (iii) repurchase or otherwise acquire acquire, encumber, pledge, dispose of or otherwise transfer any shares of its capital stock; stock or other securities or other rights convertible or exchangeable into or exercisable for any shares of its capital stock or such securities or other rights or any of its outstanding indebtedness, or offer to do the same; (iv) issue, deliver deliver, grant or sell, or authorize or propose the issuance, delivery or sale of, sell any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon (A) upon the exercise of Company Warrants or Company Options outstanding as of the date of this Agreement and Agreement; or (B) upon the exercise conversion of warrants.any Company Preferred Stock, in each case in accordance with their respective terms; (c) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (iv) amend its articles certificate of incorporation (including any certificate of designations attached thereto) or bylaws (or other equivalent organizational documents; ); (iivi) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person or sell any debt securities or warrants or rights to acquire any debt securities of another person, other than (A) borrowings under existing lines of credit (or under any refinancing outstanding on the date of such existing lines) this Agreement; or (B) inter-company indebtedness in the ordinary course of business owing to, or guaranties of indebtedness owing to, the Company; ; (iiivii) make except for those leases that have aggregate lease payments not exceeding $500,000 per annum, enter into any loans lease of real property or advances to any other person other than loans lease (excluding leases of unused fiber(s), or advances between portions thereof, requiring installation and operation by the party obtaining the right to use such fiber of electronic equipment in order to transmit communication signals by means of such fiber (“Dark Fiber”), which shall be governed by clause (viii) or (xii) below as applicable); or create any Subsidiaries material Liens on the property of the Company or between the Company and any of its the Subsidiaries in connection with any indebtedness thereof; (other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); viii) (ivA) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 by clause (d)xii) below) or sell dispose of any business or assets in a single transaction or series of transactions transactions, in which the aggregate consideration is $200,000 750,000 or greater greater, or (B) enter into any partnership, joint venture or similar arrangement; , or (vC) dispose, in any manner, of any Dark Fiber; (ix) change any material accounting policies or methods of accounting in effect used by the Company at June September 30, 20052006, except as required by the SEC or as required by GAAP as concurred with by the Company’s independent auditors; or other applicable Law; (vi) make any change in employment terms for any of its directors or officers; (viix) alter, amend or create any obligations with respect to compensation, severance, benefits, change of control payments or any other payments to to, or cause or permit the acceleration of rights, benefits or payments under any Company Plans with respect to, current or future employees, directors directors, officers or affiliates of the Company or its the Subsidiaries, other than with respect to alterations alterations, amendments or amendments creations made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; Law; (viiixi) other than as required by applicable Law, make adopt any change to new employee benefit plan or amend in any material respect any Company Benefit Plan in existence on the date of this Agreement; (xii) incur capital expenditures in excess of $250,000 in the aggregate that are not contemplated by the capital budget set forth in Section 5.1 of the Company Benefit Plans; Disclosure Letter (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; periods after December 31, 2007, that are not consistent in amount and type with such capital budget for 2007 or commitments entered into during 2007 in accordance with this Agreement); (xxiii) acquirewaive, release, assign, settle or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle compromise any material claim, action or proceedingLitigation, except to the extent subject to and not in excess of reserves that relate to the matter being settled such Litigation existing as of March 31, 2005; 2007; (xiixiv) other than a renewal in the normal ordinary course of businessbusiness consistent with prior practice, amend in any material respect, waive any of its material rights under, or enter into any agreementsMaterial Contract (provided that customer contracts that are Material Contracts shall be governed by clause (xix) below, arrangements Material Contracts relating to the disposition of Dark Fiber shall be governed by clause (viii) above, and Material Contracts relating to capital expenditures shall be governed by clause (xii) above, rather than by this clause (xiv)); (xv) fail to maintain with financially responsible insurance companies insurance in such amounts and against such risks and losses as are consistent with past practices in all material respects; (xvi) (A) make or commitments rescind any express or deemed election relating to Taxes; (B) settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes for an amount in excess of $250,000 except to the extent subject to and not in excess of reserves that relate to such claims, actions, suits, litigation, proceedings, arbitrations, investigations, audits or controversies relating to Taxes existing as of March 31, 2007; (C) file an amended Tax Return; (D) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment or (E) change (or make a request to any Tax Authority to change) in any respect any of its methods of accounting for Tax purposes, other than a change required by applicable Law; (xvii) unless in the good faith opinion of its Board of Directors, after consultation with its outside legal counsel, complying with the following provisions would be inconsistent with the fiduciary duties of such Board of Directors and only then if the taking of such actions would not violate any of the other terms of this Agreement, terminate, amend, modify or waive any provision of any confidentiality or standstill agreement (provided that such restrictions shall not apply to non-disclosure or confidentiality agreements entered into in the ordinary course of business with third parties that are not material in scope) to which Parent or any of the Subsidiaries is a party; and during such period fail to enforce, to the fullest extent permitted under applicable Law, the provisions of such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court of the United States of America or any state having jurisdiction; (xviii) enter into any “non-compete” or similar agreement that would be required restrict the businesses of the Surviving Corporation or its subsidiaries following the Effective Time or that would in any way restrict the businesses of Parent or its affiliates (excluding the Surviving Corporation and its subsidiaries) in any material respect; (xix) (A) other than in the ordinary course of business (I) amend in any material respect or (II) waive any of its material rights under any customer contract, or (B) enter into any customer contract or amendment to be disclosed any customer contract, in Section 3.14 the case of (A) or Section 3.22 (B) incorporating terms or conditions materially inconsistent with the Company’s ordinary course business practices since January 1, 2006 (including, but not limited to, terms such as pricing, discounts, timing of customer payments or discounts, service types, or capital commitments); provided, however, that the Company and its Subsidiaries may so amend or waive rights under customer contracts and enter into customer contracts incorporating terms or conditions that are not materially consistent with the Company’s ordinary course of business practices since January 1, 2006 if the aggregate effect of such amendments, waivers and customer contracts that are not materially consistent with the Company’s ordinary course of business practices on Adjusted Consolidated Revenue or EBITDA of the Company Disclosure Letter; during the Testing Period (xiii) make or change any election with respect as defined below), in each case as calculated to Taxes or change any accounting methoddetermine a Financial Material Adverse Effect, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes is less than 1% of the Company Adjusted Consolidated Revenue or any SubsidiaryEBITDA, respectively, for the applicable Testing Period set forth on Part B or Part C, as applicable, of Schedule 8.11 hereof; or or (xivc) commit or agree to take any of the actions described in this Section 5.1. 5.1 (d) Section 5.1(dother than as permitted in clause (xii) of Section 5.1(b)) . Nothing contained in this Agreement (including, without limitation, this Section 5.1) is intended to give Parent, directly or indirectly, the right to control or direct the Company’s or any of the Subsidiaries’ operations prior to the Effective Time and nothing in this Agreement is intended to give the Company, directly or indirectly, the right to control or direct Parent’s or any of its subsidiaries’ operations. Prior to the Effective Time, each of Parent, Buyer and the Company Disclosure Letter sets forth shall exercise, consistent with the projected capital expenditures for the Company terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expendituressubsidiaries’ respective operations.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, unless the Parent shall otherwise agree in writingwriting (and except as expressly contemplated, permitted or required by this Agreement), (i) the business of the Company and its the Subsidiaries shall be conducted only in, and the Company and its the Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, (ii) the Company and its the Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons Persons with which the Company or its the Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws and regulations wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Except as set forth in the Company Disclosure Letter, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; (ii) execute or cause to be executed any transactions that may result in a deemed dividend under the Code; (iii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iiiiv) repurchase or otherwise acquire any shares of its capital stock; or (ivv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any -40- 45 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 issuance of shares of Company Common Stock upon pursuant to (A) the exercise of Company Stock Options outstanding as of the date of this Agreement and Agreement, (B) employee deferrals, after tax contributions and matching contributions under the exercise Fritx Xxxpanies, Inc. Salary Investment and Retirement Plan or the Fritx Xxxpanies, Inc. Employee Stock Purchase Plan as in effect on the date hereof, (C) new Company Stock Options granted at fair market value and consistent with past practices under the Fritx Xxxpanies, Inc. 1992 Omnibus Equity Incentive Plan in the ordinary course, which shall not exceed in the aggregate options to purchase 1,000,000 shares of warrants. Company Common Stock, (cD) Except as new Company Stock Options granted at fair market value and in the ordinary course consistent with past practices to new employees, which shall not exceed in the aggregate per month options to purchase 25,000 shares of Company Common Stock or 10,000 shares to any individual, or (E) the Rights Plan; (vi) take any action that would make the Company's representations and warranties set forth in Section 5.1(cArticle III not true and correct in all material respects; (vii) take any action that would, or could reasonably be expected to, result in any of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, conditions set forth in Article VII not being satisfied; (iviii) amend its articles certificate of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (iiix) incur any indebtedness for borrowed money or guaranty any such indebtedness of another personPerson, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iiix) make any loans or advances to any other person Person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries (Subsidiary and other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); (ivxi) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 1,000,000 or greater or enter into any partnership, joint venture or similar arrangementgreater; (vxii) change any material its accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditorsGAAP; (vixiii) make any change in employment terms for any of its directors or officers; (viixiv) 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 Affiliates of the Company or its the Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by the Parent; (viiixv) other than as required by applicable Law, make any change to the Company Benefit Plans, except those changes required by applicable Laws; (ixxvi) enter into sell, license, mortgage or otherwise encumber or subject to any leasing lien or licensing agreements (otherwise dispose of any material properties or assets, other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal ordinary course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election business consistent with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiarypast practice; or (xivxvii) commit or agree to take any of the actions described in this Section 5.16.1(b). (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Section 8.1, unless Parent shall otherwise expressly agree in writingwriting (which agreement shall not be unreasonably withheld or delayed), (i) the business of the Company and its Subsidiaries shall be conducted only in, and the Company 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 Company and its Subsidiaries shall use all commercially its reasonable best efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers suppliers, distributors and other persons with which the Company or its Subsidiaries has significant material business relations, and (iii) the Company and its Subsidiaries will comply in all material respects with all applicable Laws and regulations wherever its business is conducted, including including, without limitation, the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between the date of this Agreement and the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Section 8.1 hereof, unless Parent shall otherwise expressly agree in writing (which agreement shall not be unreasonably withheld or delayed), the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) 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 payable to the Company by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company; , (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase repurchase, redeem or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon (A) the exercise of Company Options outstanding as of the date of this Agreement or awarded in conformity with clause (v) below, and (B) the exercise of warrantswarrants outstanding as of the date of this Agreement, (v) award or grant, or authorize or propose the award or grant of, any unvested Company Options, other than the award or grant of Company Options to employees (other than executive officers of the Company) in accordance with the terms of the Company Stock Option Plans and in the ordinary course of business and consistent with past practices for up to no more than 100,000 shares of Company Common Stock in the aggregate for all employees issued to employees who have not prior to the date hereof received option grants in calendar year 2001; (vi) modify or adjust any outstanding options to acquire shares of Company Common Stock, or (vii) take any action that would, or could reasonably be expected to, result in any of the conditions set forth in Article VII not being satisfied. (c) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the The Company covenants and agrees that between the date of this Agreement and the earlier of the Effective TimeTime or the termination of this Agreement in accordance with Section 8.1 hereof, unless Parent shall otherwise expressly agree in writing (which agreement shall not be unreasonably withheld or delayed), the Company shall not, nor shall the Company permit any of its Subsidiaries to, (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 personperson or mortgage or pledge any of its assets or properties, other than in connection with (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or credit, (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company, (C) leasing contracts entered into in the ordinary course of business with payments of less than $50,000 in the aggregate on a monthly basis, (D) indebtedness incurred to make payments specifically provided under or contemplated by Section 2.6(a), Section 4.19, Section 6.15 and Section 6.19 of this Agreement or (E) accounts payable incurred in the ordinary course of business consistent with past practice; (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries (and other than loans advances of ordinary business expenses or advances less than $100,000 made to employees in the ordinary course of business consistent with past practice)practice in principal amounts of not more than $10,000; (iv) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)v) or sell any business or assets, other than sales of assets (other than sales of products and inventory in the ordinary course of business consistent with past practices) having a single transaction or series value of transactions less than $200,000 individually and $500,000 in which the aggregate consideration is $200,000 or greater or enter into any partnership, joint venture or similar arrangementto the extent such sales are in the ordinary course of business and consistent with past practices; (vvi) change any material its accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditorsor applicable Law; (vivii) make any change in employment terms for any of its directors or officers, except as expressly contemplated by this Agreement; (viiviii) 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 Company or its SubsidiariesSubsidiaries or enter into any new, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or amend any existing, employment agreements, except (A) as required by applicable Law or (B) severance agreements containing terms consistent with the Company's policies and practices as expressly contemplated by this Agreement of the date hereof in amounts not to exceed $15,000 individually or consented to $150,000 in writing by Parent; (viii) the aggregate other than as required by applicable Lawseverance agreements with key employees identified in Section 6.1(c) of the Company Disclosure Letter, (ix) make any change to the Company Benefit Plans, except as required by applicable Law, (x) amend or cancel or agree to the amendment or cancellation of any Material Contract; (ixxi) enter into any leasing pay, loan or licensing agreements advance (other than the License Assignment and the Spectrum Lease)payment of compensation, take-or-pay arrangements directors' fees or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess reimbursement of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal expenses in the normal ordinary course of business) any amount to, amend in or sell, transfer or lease any material respectproperties or assets (real, waive any of its material rights underpersonal or mixed, tangible or intangible) to, or enter into any agreementsagreement with, arrangements any of its officers or commitments that would be required to be disclosed in Section 3.14 directors or Section 3.22 any "affiliate" or "associate" of any of its officers or directors; (xii) form or commence the Company Disclosure Letteroperations of any business or any corporation, partnership, joint venture, business association or other business organization or division thereof; (xiii) make any tax election or change settle or compromise any election with respect to Taxes tax liability involving amounts in excess of $25,000 individually or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend $200,000 in the statute of limitations relating to any Taxes of the Company or any Subsidiaryaggregate; or (xiv) commit pay, discharge, settle or agree to take satisfy any claims litigation, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise) involving amounts in excess of $75,000 individually or $200,000 in the actions described aggregate. The Company shall not amend, modify, terminate or rescind, or waive any provision of, or otherwise alter in this Section 5.1. (d) Section 5.1(d) any way the Employment Agreement of even date herewith between the Company Disclosure Letter sets forth and Stephen Williamson prior to the projected capital expenditures for Effective Time without thx xxxxx xxxxxxx xxnsent of Parent. In connection with the continued operation of the Company and its Subsidiaries between the date hereof and the Closing Date, the Company will confer in good faith on a consolidated regular and frequent basis from with one or more representatives of Parent designated to the date Company regarding operational matters and the general status of this Agreement through December 31, 2005ongoing operations promptly and will notify Parent of any event or occurrence that has had or may reasonably be expected to have a Company Material Adverse Effect. The Company agrees acknowledges that Parent does not and will not waive any rights it may have under this Agreement as a result of such consultations. The Company shall not incur capital expenditurestake any action that would, or that could reasonably be expected to, result in any of the aggregate, representations and warranties of the Company sets forth in excess of such projected capital expendituresthis Agreement becoming untrue.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, Time unless Parent shall otherwise agree in writingwriting and except as contemplated, permitted or required by this Agreement, (i) the business of the Company and its the Subsidiaries shall be conducted only in, and the Company and its the Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practice, (ii) the Company and its the Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons with which the Company or its the Subsidiaries has significant business relations, in each case consistent with past practice and (iii) the Company and the Subsidiaries will comply in all material respects with all applicable Laws wherever its business is their respective businesses are conducted, including including, without limitation, the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Without limiting the generality of Section 6.1(a) above, and except as expressly provided or permitted by this Agreement or set forth in the Company Disclosure Letter, the Company covenants and agrees that between the date of this Agreement and the Effective Time, Time the Company shall not, nor shall the Company permit any of its the Subsidiaries to, without the prior written consent of Parent (i) other than regularly scheduled quarterly dividends not to exceed $.04 per share of Company Common Stock per fiscal quarter, 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 Company to the Company or another wholly owned Subsidiary of the Company; , (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock stock, including Company Preferred Stock, or any 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 issuance of shares of Company Common Stock upon (A) the exercise of Company Stock Options outstanding as of the date of this Agreement and Agreement, (Bv) take any action that would, or could reasonably be expected to, result in any of the exercise of warrants. (c) Except as conditions set forth in Section 5.1(cArticle VII not being satisfied; (vi) amend the Company Charter Documents and the organizational documents of the Company Disclosure Schedule, the Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documentsSubsidiaries; (iivii) create, assume or incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iiiviii) make any loans or advances to any other person Person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its the Subsidiaries (and other than loans loan or advances less than $100,000 made in the ordinary course of business consistent with past practice)practices; (ivix) except in the ordinary course of business, mortgage or pledge any of its assets or properties; (x) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 500,000 or greater or enter into any partnershipgreater, joint venture or similar arrangementother than the sale of obsolete assets in the ordinary course of business; (vxi) change any material its accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditorsapplicable Laws or GAAP; (vixii) make any change in employment terms for any of its directors or officers; (viixiii) alter, amend amend, create or create terminate any obligations obligations, other than those incurred or entered into in the ordinary course of business, with respect to compensation, severance, benefits, change of control payments or any other payments to employees, directors or affiliates Affiliates of the Company or its Subsidiariesthe Subsidiaries or enter into any new, or amend any existing Employee/Consulting Agreement; provided that any new, or amendments to existing, Employee/Consulting Agreements may be entered into with non-officers in the ordinary course of business; (xiv) alter, amend, create or terminate any Current Company Benefit Plan except those required by Law or as contemplated in Section 6.16; (xv) establish, adopt or amend any collective bargaining agreement; (xvi) other than with respect to alterations letters of credit and bonds listed in Section 4.18 of the Company Disclosure Letter, amend or amendments made with respect cancel or agree to non-the amendment or cancellation of any contract set forth in Section 4.18 of the Company Disclosure Letter, (xvii) pay, loan or advance (other than the payment of compensation, directors’ fees or reimbursement of expenses in the ordinary course of business) any amount to, or sell, transfer or lease any properties or assets (real, personal or mixed, tangible or intangible) to, or enter into any agreement with, any of its officers and non-or directors or any Affiliate or Associate of any of its officers or directors; (xviii) form or commence the operations of any business or any corporation, partnership, joint venture, business association or other business organization or division thereof; (xix) make any material tax election (other than in the ordinary course of business consistent with past practice practice) or as required by applicable Law settle or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) other than as required by applicable Law, make compromise any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not tax liability involving amounts in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal $100,000 in the normal course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiaryaggregate; or (xivxx) commit pay, discharge, settle or agree to take satisfy any of the actions described in this Section 5.1. Litigation, liabilities or obligations (dwhether absolute, accrued, asserted or unasserted, contingent or otherwise) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, involving amounts in excess of such projected capital expenditures$150,000 more than amounts, if any, reserved on the Company Financial Statements.

Conduct of the Business Pending the Merger. (a) The Company covenants From and agrees that between after the date of this Agreement and hereof, prior to the Effective Time, except as contemplated by this Agreement or required by Law or regulation, or unless Parent Buyer shall otherwise agree in writing, the Company covenants and agrees that it shall (i) carry on its business in the business of the Company usual, regular and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a substantially the same manner consistent with prior practiceas heretofore conducted, (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers its employees, (iii) comply with the provisions of all laws, regulations, judicial decrees and employees orders applicable to it or the conduct of its business, (iv) protect the Company Intellectual Property Rights so that the Company's goodwill and to preserve on-going business shall not be impaired in any material respect at the current relationships Effective Time, (v) promptly advise Buyer of the Company and its Subsidiaries with customersthreat, suppliers and other persons with assertion or commencement of any litigation to which the Company is, or its Subsidiaries has significant business relationsmay be made, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Acta party. (b) The Company covenants and agrees that between the date of this Agreement and Unless Buyer shall otherwise agree in writing, prior to the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, : (i) declare declare, set aside, or pay any dividends on on, or make any other distributions (whether in cash, stock or property) in respect of of, any of its capital stock, except for dividends by a wholly owned Subsidiary of the Company to the Company or another wholly owned Subsidiary of the Company; or (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any shares of the Company's Common Stock or other securities in respect of, in lieu of or in substitution for shares of its the Company's capital stock; or (iii) repurchase purchase, redeem or otherwise acquire acquire, any shares of its capital stock; or or (iv) issuegrant, deliver award or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any securities convertible enter into any such shares compensation or "change of its capital stock, or control" arrangement with 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 employee of the Company without the prior written consent of Buyer; or (v) except for the issuance of shares of Company Common Stock upon the valid exercise of the Company Stock Options and receipt of consideration required in connection therewith thereby raising the total number of issued and outstanding shares of Company Common Stock at Closing to 691,944 (excluding the shares of Company Common Stock held by Buyer), (A) the exercise issue, deliver, sell, pledge, dispose of Company Options outstanding as or otherwise encumber any shares of its capital stock (other than encumbrances in favor of the date of this Agreement and Company imposed by the arrangements described in Section 6.1), (B) issue any additional Company Stock Options, (C) issue rights, options, warrants or other securities convertible into shares of capital stock of the exercise Company, or (D) amend the terms of warrants.any outstanding securities, rights, warrants or options (including Company Stock Options, except as contemplated by this Agreement); or (cvi) Except as set forth in Section 5.1(c) amend the articles of organization or by-laws of the Company Disclosure Schedulein any manner detrimental to the rights of Buyer; or (vii) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the Company covenants and agrees that between the date assets of, or by any other manner, any business or any corporation, partnership, joint venture, association or other business organization or division thereof; or (viii) subject to a Lien or sell, lease, license or otherwise dispose of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit or transfer any of its Subsidiaries to, properties or assets or any Company Intellectual Property Right; or (iix) amend its articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; (iiA) incur or modify any indebtedness for borrowed money (excluding (1) with respect to the Company's $250,000 line of credit with Cambridge Trust Company which the Company may draw upon to fund its ongoing operations, though not for capital expenditures in excess of $50,000 without Buyer's consent, in a manner consistent with prior business practices, and (2) the Company's $153,000 secured note with Massachusetts Development Finance Agency for the acquisition of capital equipment, further borrowing under which may be pursued but only with Buyer's approval) or guaranty guarantee any such indebtedness of another personPerson, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company or between the Company and any of its Subsidiaries (other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); (iv) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) issue or sell any business or assets in a single transaction or series debt securities of transactions in which the aggregate consideration is $200,000 or greater or enter into any partnership, joint venture or similar arrangement; (v) change any material accounting policies or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred with by the Company’s independent auditors; (vi) make any change in employment terms for any of its directors or officers; (vii) 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 Company or its Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) other than as required by applicable Law, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; or (xiv) commit or agree to take any of the actions described in this Section 5.1. (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.,

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, except as otherwise provided in Section 5.1(a) of the Company Disclosure Letter or unless Parent shall otherwise agree consent in writingwriting (such consent not to be unreasonably withheld), (i) the business of the Company and its the Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, in the ordinary course of business and in a manner consistent with prior practice, (ii) the Company and its the Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its the Subsidiaries with customers, suppliers and other persons with which the Company or its the Subsidiaries has have significant business relationsrelations such that their ongoing businesses shall not be impaired in any material respect at the Effective Time, and (iii) the Company will comply in all material respects with all applicable Laws wherever its business is conducted, including the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act. (b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (iii) repurchase or otherwise acquire any shares of its capital stock; or (iv) except as set forth in Section 5.1(b) of the Company Disclosure Letter, issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock upon (A) upon the exercise of Company Warrants or Company Options outstanding as of the date of this Agreement and Agreement, (B) upon the exercise conversion of warrantsany Series B Preferred Stock or (C) under the ESPP as described in Section 1.7. (c) Except as set forth in Section 5.1(c) of the Company Disclosure ScheduleLetter, the Company covenants and agrees that between the date of this Agreement and the Effective TimeTime without the prior written consent of Parent (which consent shall not be unreasonably withheld), the Company shall not, nor shall the Company permit any of its the Subsidiaries to, (i) amend its articles certificate of incorporation (including any certificate of designations attached thereto) or bylaws (or other equivalent organizational documents); (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; (iii) make any loans or advances to any other person other than loans or advances between any Subsidiaries of the Company Subsidiary or between the Company and any of its Subsidiaries Subsidiary (other than loans or advances less than $100,000 made in the ordinary course of business consistent with past practice); (iv) except as permitted in Section 5.5(b), merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by by Section 5.1 (d5.1(d)) or sell any business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 or greater or enter into any partnership, joint venture or similar arrangement; (v) change any material accounting policies or methods of accounting in effect at June September 30, 2005, except as required by the SEC or as required by GAAP as concurred with by the Company’s independent auditors; (vi) make any change in employment terms for any of its directors or officers; (vii) 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 Company or its the Subsidiaries, other than with respect to alterations alterations, amendments or amendments creations made with respect to non-officers and non-directors in the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; (viii) other than as required by applicable Law, make any change to the Company Benefit Plans; (ix) enter into any leasing or licensing agreements (other than the License Assignment and the Spectrum Lease), take-or-pay arrangements or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xix) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31September 30, 2005; (xiixi) other than a the renewal in the normal ordinary course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiiixii) except as required by Law, make or change any election with respect to Taxes or change any accounting method, file any claim for refund or any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; or (xiii) apply for or otherwise seek to obtain any License issued or granted by the FCC; or (xiv) commit or agree to take any of the actions described in this Section 5.1. (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its the Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 20052006. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.

Conduct of the Business Pending the Merger. (a) The Company covenants and agrees that between the date of this Agreement and the Effective Time, except as set forth in the Company Disclosure Schedule or, unless Parent Buyer shall otherwise agree in advance, which consent shall not be unreasonably withheld and shall be subsequently confirmed in writing, (i) the business businesses of the Company and its Subsidiaries shall be conducted only in, and the Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with prior practicepractice (it being understood that the foregoing does not cover future events resulting from the public announcement of the Offer and the Merger), (ii) the Company and its Subsidiaries shall use all commercially reasonable efforts to preserve substantially intact their business organizations, to keep available the services of their current officers and employees and to preserve the current relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or its Subsidiaries has significant business relations, and (iii) the Company will comply in all material respects with all applicable Laws laws and regulations wherever its business is conducted, including without limitation the timely filing of all reports, forms or other documents with the FCC and with the SEC required pursuant to the Securities Act or the Exchange Act, except where such noncompliance would not have a Material Adverse Effect on the Company, (iv) the Company shall not commit to any significant capital expenditures except those related to developing, constructing, permitting, equipping and opening the five planned restaurants identified on the Company Disclosure Schedule, and (iv) the Company shall not enter into any new franchise agreement. (b) The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) 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 Company to the Company or another wholly owned Subsidiary of the Company; , (ii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; , (iii) repurchase or otherwise acquire or permit any Subsidiary to purchase or otherwise acquire, any shares of its capital stock; or , (iv) issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock or any 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 issuance of shares of Company Common Stock Shares upon (A) the exercise of Company Options outstanding as of the date of this Agreement under the Company Stock Option Plans, and formula grants of Company Options to directors pursuant to the 1995 Directors Stock Option Plan and the issuance by a wholly-owned Subsidiary of the Company of its capital stock to its parent, or (Bvi) willfully take any action that would make the exercise of warrantsCompany's representations and warranties set forth in Article III not true and correct in all material respects. (c) Except as set forth in Section 5.1(c) of the Company Disclosure Schedule, the The Company covenants and agrees that between the date of this Agreement and the Effective Time, the Company shall not, nor shall the Company permit any of its Subsidiaries to, (i) amend its articles of incorporation (including any certificate of designations attached thereto) or bylaws or other equivalent organizational documents; , (ii) incur any indebtedness for borrowed money or guaranty any such indebtedness of another person, other than (A) borrowings under existing lines of credit (or under any refinancing of such existing lines) ), or (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company; , (iii) make any loans or advances to any other person person, other than loans or advances between any Subsidiaries to employees (that are not Affiliates of the Company or between the Company and any of its Subsidiaries (other than loans or advances less than $100,000 made Company) in the ordinary course of business consistent accordance with past practice); , (iv) merge or consolidate with any other entity in any transaction, or acquire (other than capital expenditures permitted by Section 5.1 (d)) sell all or sell any substantially all of its business or assets in a single transaction or series of transactions in which the aggregate consideration is $200,000 or greater or enter into any partnershipassets, joint venture or similar arrangement; (v) change make any material accounting policies change, other than in the ordinary course of business, consistent with past practice, or methods of accounting in effect at June 30, 2005, except as required by GAAP as concurred the SEC or law, with respect to any accounting methods, principles or practices used by the Company’s independent auditors; Company (except insofar as may be required by a change in GAAP), (vi) make any change in employment terms for any of its directors or officers; (vii) alter, amend or create make any obligations with respect to compensation, severance, benefits, change in employment terms for any of control payments or any other payments to employees, directors or affiliates of the Company or its Subsidiaries, other than with respect to alterations or amendments made with respect to non-officers and non-directors in employees outside the ordinary course of business consistent with past practice or as required by applicable Law or as expressly contemplated by this Agreement or consented to in writing by Parent; practices, (viii) other than as required by applicable Law, make any change to the Company Benefit PlansPlans except as required by law; (ix) enter into any leasing materially amend or licensing agreements (other than modify the License Assignment form of franchise agreement with, the procedures or rules and regulations applicable to or the Spectrum Lease)nature of its relationship with, take-or-pay arrangements its franchisees, or other affiliations, alignments or agreements with respect to the FCC Licenses; (x) acquire, or participate in any auction or other process related to the acquisition of, personal communications service licenses or wireless spectrum; (xi) settle any material claim, action or proceeding, except to the extent subject to and not in excess of reserves that relate to the matter being settled existing as of March 31, 2005; (xii) other than a renewal in the normal course of business, amend in any material respect, waive any of its material rights under, or enter into any agreements, arrangements or commitments that would be required to be disclosed in Section 3.14 or Section 3.22 of the Company Disclosure Letter; (xiii) make or change any election with respect to Taxes or change any accounting method, file any amended Tax Return, settle any Tax dispute or waive or extend the statute of limitations relating to any Taxes of the Company or any Subsidiary; or (xiv) commit or agree to take any of the actions described in this Section 5.1. (d) Section 5.1(d) of the Company Disclosure Letter sets forth the projected capital expenditures for the Company and its Subsidiaries on a consolidated basis from the date of this Agreement through December 31, 2005. The Company agrees that it shall not incur capital expenditures, in the aggregate, in excess of such projected capital expenditures.