Common use of Conduct of the Company Business Clause in Contracts

Conduct of the Company Business. The Company covenants and agrees that, between the date of this Agreement and the Effective Time, except (i) with the prior written consent of Parent, which may not be unreasonably withheld, delayed or conditioned, (ii) as contemplated by this Agreement or by the schedules hereto or (iii) for transactions between or among the Company and its subsidiaries: (a) the respective businesses of the Company and the Company Material Subsidiaries shall be conducted in the ordinary course and in a manner consistent with past practice, in each case in all material respects; (b) except to the extent required to comply with applicable law and other than bylaw amendments that are not detrimental to the interests of the Company’s stockholders, the Company shall not amend or otherwise change its certificate of incorporation or bylaws; (c) the Company shall not, and shall not permit any of the Company Material Subsidiaries to, issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of any class of the Company or any Company Material Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, of the Company or any Company Material Subsidiary (except in accordance with the terms of securities outstanding on the date hereof or any existing employee ownership or benefit plan and in accordance with the Company Rights Plan); (d) the Company shall not (A) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for regular quarterly dividends by the Company in the ordinary course of business not in excess of the amount paid for the most recent quarter) or (B) reclassify, combine, split or subdivide, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (e) the Company shall not, and shall not permit its subsidiaries to, (i) acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or any division thereof or any amount of assets in excess of $5,000,000 in the aggregate; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than the Company or any of its subsidiaries), or make any loans or advances, except in the ordinary course of business and consistent with past practice and not in excess of $1,000,000 in the aggregate; or (iii) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this paragraph (e); (f) the Company shall not, and shall not permit its subsidiaries to, increase materially the compensation payable or to become payable to, or grant any severance or termination pay to, its officers or employees, except pursuant to existing contractual arrangements, or enter into any employment or severance agreement with, any director, officer or other employee of the Company or any of its subsidiaries, or except as required by law establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that (i) the Company shall not take any of the foregoing actions with respect to any officer or director who has entered into an employment agreement (“Employment Agreement”) with the Company attached as an exhibit to the Company’s most recent annual report on Form 10-K included in the Company SEC Reports and (ii) with respect to all other employees, the Company shall be permitted to increase salaries in an aggregate amount not to exceed $1.55 million on an annual basis. Notwithstanding any provision of this Agreement to the contrary, the Company shall (i) establish an irrevocable rabbi trust as described in Section 4.1(f) of the Company Schedule and (ii) amend each Employment Agreement to provide that the bonus paid in 2006 in respect of the 2005 fiscal year will be used for purposes of calculating Severance Amounts (as defined in the Employment Agreement); (g) the Company shall not, and shall not permit any of its subsidiaries to, make any capital expenditures in any fiscal quarter exceeding its capital expenditure budget (a copy of which is attached as Section 4.1(g) of the Company Schedule) for such fiscal quarter by more than $5,000,000; (h) the Company shall not, and shall not permit any of its subsidiaries to, purchase, sell, transfer, assign, farm-out, mortgage, encumber or otherwise dispose of any properties or assets having a value in excess of $5,000,000 in the aggregate; (i) the Company shall not, and shall not permit any of its subsidiaries to, enter into any hedging agreements whether or not in the ordinary course of business consistent with past practice; (j) except in the ordinary course of business consistent with past practice, the Company shall not, and shall not permit any of its subsidiaries to, enter into, renew, extend, materially amend or terminate any Company Material Contract or Contract which if entered into prior to the date hereof would be a Company Material Contract; (k) the Company shall not, and shall not permit any of its subsidiaries to, waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the financial statements contained in the Company SEC Documents, or that involve only the payment of monetary damages not in excess of $5,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amount, in each case, other than in the ordinary course consistent with past practice; (l) the Company shall not, and shall not permit any of its subsidiaries to, take or omit to take any action that would reasonably be expected to, individually or in the aggregate, result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; (m) the Company shall not, and shall not permit any of its subsidiaries to, enter into any “non-compete,” “non-solicit” or similar agreement that would materially restrict the businesses of the Surviving Company or its subsidiaries or their ability to solicit customers or employees following the Effective Time; (n) the Company shall not, and shall not permit any of its subsidiaries to, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity; (o) the Company shall not, and shall not permit any of its subsidiaries to, change its methods of accounting (other than Tax accounting, which shall be governed by clause (p) below), except in accordance with changes in GAAP as concurred to by the Company’s independent auditors; (p) the Company shall not, and shall not permit any of its subsidiaries to, enter into any closing agreement with respect to material Taxes, settle or compromise any material liability for Taxes, make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax ruling; (q) the Company shall not, and shall not permit any of its subsidiaries to, enter into any new, or amend or otherwise alter any Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to the date hereof; (r) the Company shall not, and shall not permit any of its subsidiaries to, make any loans to any individual (other than advances of out-of-pocket business expenses to employees, contractors or consultants in the ordinary course of business and consistent with past practices) or make any material loans, advances or capital contributions to, or investments in, any other person in excess of $500,000 in the aggregate for all such loans, advances, contributions and investments, except for transactions solely among the Company and/or wholly-owned subsidiaries of the Company; and (s) the Company shall not and shall not permit any of its subsidiaries (as applicable) to agree or formally commit to do any of the foregoing.

Conduct of the Company Business. The Company covenants and agrees that, between Prior to the date earlier of the Closing Date or termination of this Agreement and the Effective TimeAgreement, except (i) with the prior written consent of Parent, which may not be unreasonably withheld, delayed Parent or conditioned, (ii) as expressly contemplated by this Agreement or by the schedules hereto or (iii) for transactions between or among described in Section 5.1 of the Company Disclosure Schedule, the Company shall, and its subsidiariesshall cause the Company Subsidiaries to: (a) conduct its business in substantially the respective businesses of the Company same manner as presently being conducted and the Company Material Subsidiaries shall be conducted in the ordinary course and in a manner consistent with past practice, in each case in all material respects; (b) except to the extent required to comply with applicable law and refrain from entering into any transaction or Contract other than bylaw amendments that are not detrimental to the interests of the Company’s stockholders, the Company shall not amend or otherwise change its certificate of incorporation or bylaws; (c) the Company shall not, and shall not permit any of the Company Material Subsidiaries to, issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of any class of the Company or any Company Material Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, of the Company or any Company Material Subsidiary (except in accordance with the terms of securities outstanding on the date hereof or any existing employee ownership or benefit plan and in accordance with the Company Rights Plan); (d) the Company shall not (A) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for regular quarterly dividends by the Company in the ordinary course of business not in excess of the amount paid for the most recent quarter) or (B) reclassify, combine, split or subdivide, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (e) the Company shall not, and shall not permit its subsidiaries to, (i) acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or any division thereof or any amount of assets in excess of $5,000,000 in the aggregate; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than the Company or any of its subsidiaries), or make any loans or advances, except in the ordinary course of business and consistent with past practice practices; and not make any material change in excess its methods of $1,000,000 in the aggregate; management, marketing, accounting, or (iii) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this paragraph (e)operations; (fb) obtain approval from Parent prior to undertaking any material new business opportunity outside the ordinary course of business; (c) confer at the reasonable request of Parent with one or more designated representatives of Parent to report material operational matters and to report the general status of ongoing business operations; (d) notify Parent of any governmental complaints, investigations or hearings (or communications received by the Company shall notindicating that the same may be contemplated), and shall adjudicatory proceedings or submissions involving any material property or other material Assets; (e) not permit its subsidiaries to, increase materially the compensation payable (i) grant to any current or to become payable to, or grant any severance or termination pay to, its officers or employees, except pursuant to existing contractual arrangements, or enter into any employment or severance agreement with, any former director, officer or other employee of the Company or any of its subsidiaries, or except as required by law establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that (i) the Company shall not take Subsidiaries any of the foregoing actions with respect to any officer increase in compensation or director who has entered into an employment agreement (“Employment Agreement”) with the Company attached as an exhibit to the Company’s most recent annual report on Form 10-K included in the Company SEC Reports and (ii) with respect to all other employeesbenefits, the Company shall be permitted to increase salaries in an aggregate amount not to exceed $1.55 million on an annual basis. Notwithstanding any provision of this Agreement to the contrary, the Company shall (i) establish an irrevocable rabbi trust as described in Section 4.1(f) of the Company Schedule and (ii) amend each Employment Agreement to provide that the bonus paid in 2006 in respect of the 2005 fiscal year will be used except for purposes of calculating Severance Amounts (as defined in the Employment Agreement); (g) the Company shall not, and shall not permit any of its subsidiaries to, make any capital expenditures in any fiscal quarter exceeding its capital expenditure budget (a copy of which is attached as Section 4.1(g) of the Company Schedule) for such fiscal quarter by more than $5,000,000; (h) the Company shall not, and shall not permit any of its subsidiaries to, purchase, sell, transfer, assign, farm-out, mortgage, encumber or otherwise dispose of any properties or assets having a value in excess of $5,000,000 in the aggregate; (i) the Company shall not, and shall not permit any of its subsidiaries to, enter into any hedging agreements whether or not raises in the ordinary course of business consistent with past practicepractice or as required under any written employment agreement, (ii) grant to any director, officer, or employee any increase in severance or termination pay, including the vesting of shares of the Company Stock (or other property), or (iii) enter into any employment, deferred compensation, severance or termination agreement or arrangement with or for the benefit of any such current or former director, officer or employee; (jf) except as incurred under existing lines of credit in the ordinary course of business and consistent with past practicepractices, the Company shall not, and shall not permit (i) create or incur any of its subsidiaries to, enter into, renew, extend, materially amend or terminate any Company Material Contract or Contract which if entered into prior to the date hereof would be a Company Material Contract; (k) the Company shall not, and shall not permit any of its subsidiaries to, waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the financial statements contained in the Company SEC Documentsindebtedness, or that involve only the payment (ii) release or create any material Liens of monetary damages not in excess of $5,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) any nature whatsoever except for Permitted Liens or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amount, in each case, other than in the ordinary course consistent with past practice; (g) except in the ordinary course of business, or even if in the ordinary course of business, then not in an amount to exceed $100,000 individually or $250,000 in the aggregate, not make or commit to make any capital expenditure, or enter into any lease of capital equipment as lessee or lessor; (h) not amend the Articles of Incorporation, Bylaws or other governing instruments of the Company, except as contemplated by this Agreement; (i) not make any changes in its accounting methods or practices or revalue its Assets, except for (i) those changes required by GAAP or the SEC, and (ii) changes in its tax accounting methods or practices that may be necessitated by changes in applicable Tax Laws; (j) not issue, sell, pledge, encumber, authorize the issuance of, enter into any Contract to issue, sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of the Company Stock, or any stock appreciation rights, or any option, warrant, conversion, or other right to acquire any such stock, or any security convertible into any such stock, or pay or declare or agree to pay or declare any dividend or other distribution with respect to any of the Company Stock, except for shares to be issued pursuant to the Company Options outstanding as of the date of this Agreement under the Option Plans and except as may be permitted by Section 5.4 hereof; (k) not sell or otherwise dispose of any material Asset or make any material commitment relating to its Assets other than in the ordinary course of business or as permitted by Section 5.4 hereof, or enter into or terminate any lease of real property other than in the ordinary course of business; (l) not purchase or redeem, or agree to purchase or redeem, any security of the Company shall not(including any share of Company Stock) except repurchases of shares of Company Stock in connection with the termination of services of any employee or consultant pursuant to Company Options, and shall or as permitted by Section 5.4 hereof; (m) not permit acquire or agree to acquire by merging or consolidating with, or by purchasing any Person, interest in, portion of its subsidiaries toor the capital or the Assets of, take or omit by any other manner, any business of any Person or division thereof, or otherwise acquire or agree to take acquire any action that would reasonably be expected toAssets which are material, individually or in the aggregate, result in any to the business of the conditions to the Merger set forth in Article VI not being satisfied Company or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; (m) the Company shall not, and shall not permit any of its subsidiaries to, Subsidiaries or enter into any “non-compete,” “non-solicit” joint ventures, strategic partnerships or similar agreement that would materially restrict the businesses of the Surviving Company or its subsidiaries or their ability to solicit customers or employees following the Effective Timealliances, except as otherwise permitted by Section 5.4 below; (n) not materially modify or amend, or terminate any material Contract to which the Company shall not, and shall not permit or any of its subsidiaries tothe Company Subsidiaries is a party or waive, adopt release, or assign any material rights or claims thereunder, in any such case in a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity;manner materially adverse to the Company; or (o) authorize any, or commit or agree to take any of, the Company shall not, and shall not permit any of its subsidiaries to, change its methods of accounting (other than Tax accounting, which shall be governed by clause (p) below)foregoing actions, except in accordance with changes in GAAP as concurred to permitted by the Company’s independent auditors; (p) the Company shall not, and shall not permit any of its subsidiaries to, enter into any closing agreement with respect to material Taxes, settle or compromise any material liability for Taxes, make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax ruling; (q) the Company shall not, and shall not permit any of its subsidiaries to, enter into any new, or amend or otherwise alter any Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to the date Section 5.4 hereof; (r) the Company shall not, and shall not permit any of its subsidiaries to, make any loans to any individual (other than advances of out-of-pocket business expenses to employees, contractors or consultants in the ordinary course of business and consistent with past practices) or make any material loans, advances or capital contributions to, or investments in, any other person in excess of $500,000 in the aggregate for all such loans, advances, contributions and investments, except for transactions solely among the Company and/or wholly-owned subsidiaries of the Company; and (s) the Company shall not and shall not permit any of its subsidiaries (as applicable) to agree or formally commit to do any of the foregoing.

Conduct of the Company Business. The Company covenants and agrees that, between the date of this Agreement and the Effective Time, except (i) Except with the prior written consent of Parent, which may not be unreasonably withheldprior to the Closing Date, delayed or conditioned, (ii) as contemplated by this Agreement or by the schedules hereto or (iii) for transactions between or among the Company shall cease all operations and its subsidiariesactivities including as set forth below: (a) the respective businesses refrain from entering into any transaction or Contract; and not make any Material change in its methods of the Company and the Company Material Subsidiaries shall be conducted in the ordinary course and in a manner consistent with past practicemanagement, in each case in all material respectsmarketing, accounting, or operations; (b) except to the extent required to comply with applicable law and other than bylaw amendments that are not detrimental to the interests of the Company’s stockholders, the Company shall not amend or otherwise change its certificate of incorporation or bylawsundertaking any Material new business opportunity; (c) the Company shall not, and shall not permit any of the Company Material Subsidiaries to, issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of any class of the Company or any Company Material Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, of the Company or any Company Material Subsidiary (except in accordance with the terms of securities outstanding on the date hereof or any existing employee ownership or benefit plan and in accordance with the Company Rights Plan); (d) the Company shall not (A) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for regular quarterly dividends by the Company in the ordinary course of business not in excess of the amount paid for the most recent quarter) or (B) reclassify, combine, split or subdivide, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (e) the Company shall not, and shall not permit its subsidiaries to, (i) acquire (including, without limitation, by merger, consolidation or acquisition grant of stock or assets) any corporation, partnership or other business organization or any division thereof or any amount of assets in excess of $5,000,000 in the aggregate; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than the Company or any of its subsidiaries), or make any loans or advances, except in the ordinary course of business and consistent with past practice and not in excess of $1,000,000 in the aggregate; or (iii) enter into or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this paragraph (e); (f) the Company shall not, and shall not permit its subsidiaries to, increase materially the compensation payable or to become payable to, or grant any severance or termination pay to, its officers to any current or employees, except pursuant to existing contractual arrangements, or enter into any employment or severance agreement with, any former director, officer or other employee of the Company Company, (ii) enter into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any current or former director, officer or employee of its subsidiariesthe Company, (iii) increase in benefits payable under any existing severance or termination pay policies or employment agreements, (iv) increase in compensation, bonus or other benefits payable or otherwise made available to current or former directors, officers or employees of the Company, (v) declare or pay of any bonuses or year-end payments to any current or former directors, officers or employees of the Company, or (vi) establish, adopt, or amend (except as required by law establishapplicable Law), adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employmentcompensation, terminationstock option, severance restricted stock or other plan, agreement, trust, fund, policy benefit plan or arrangement for the benefit of covering any current or former director, officer or employee; provided, however, that (i) the Company shall not take any employee of the foregoing actions with respect to Company; (d) create or incur any officer indebtedness, or director who has entered into an employment agreement (“Employment Agreement”) with the Company attached as an exhibit to the Company’s most recent annual report on Form 10-K included in the Company SEC Reports and (ii) with respect release or create any Liens of any nature; (e) make or commit to all other employeesmake any capital expenditure, the Company shall be permitted or enter into any lease of capital equipment as lessee or lessor; (f) pay, prepay or discharge any liability or fail to increase salaries in an aggregate amount not to exceed $1.55 million on an annual basis. Notwithstanding pay any provision of this Agreement to the contrary, the Company shall (i) establish an irrevocable rabbi trust as described in Section 4.1(f) of the Company Schedule and (ii) amend each Employment Agreement to provide that the bonus paid in 2006 in respect of the 2005 fiscal year will be used for purposes of calculating Severance Amounts (as defined in the Employment Agreement)liability when due; (g) the Company shall not, and shall not permit write-off or write-down any of its subsidiaries to, make any capital expenditures in any fiscal quarter exceeding its capital expenditure budget (a copy of which is attached as Section 4.1(g) assets of the Company Schedule) for such fiscal quarter by more than $5,000,000Company; (h) amend the Company shall notCertificate of Incorporation, Bylaws or other governing instruments of the Company, except as contemplated by this Agreement; (i) make any changes in its accounting methods or practices or revalue its Assets, except for (i) those changes required by GAAP, and shall not permit any of (ii) changes in its subsidiaries to, purchasetax accounting methods or practices that may be necessitated by changes in applicable Tax Laws; (j) issue, sell, transferpledge, assignencumber, farm-outauthorize the issuance of, mortgageenter into any Contract to issue, encumber sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of the Company Stock, or any stock appreciation rights, or any option, warrant, conversion, or other right to acquire any such stock, or any security convertible into any such stock, or pay or declare or agree to pay or declare any dividend or other distribution with respect to any the Company Stock; (k) make any loan or otherwise arrange for the extension of credit to any Employee or increase the aggregate amount of any loan currently outstanding to any Employee; (l) sell or otherwise dispose of any properties Material Asset or assets having a value in excess of $5,000,000 in the aggregate; (i) the Company shall not, and shall not permit make any of Material commitment relating to its subsidiaries to, Assets or enter into any hedging agreements whether or not in the ordinary course of business consistent with past practice; (j) except in the ordinary course of business consistent with past practice, the Company shall not, and shall not permit any of its subsidiaries to, enter into, renew, extend, materially amend or terminate any Company Material Contract or Contract which if entered into prior to the date hereof would be a Company Material Contract; (k) the Company shall not, and shall not permit any lease of its subsidiaries to, waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the financial statements contained in the Company SEC Documents, or that involve only the payment of monetary damages not in excess of $5,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amount, in each case, other than in the ordinary course consistent with past practice; (l) the Company shall not, and shall not permit any of its subsidiaries to, take or omit to take any action that would reasonably be expected to, individually or in the aggregate, result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreementreal property; (m) purchase or redeem, or agree to purchase or redeem, any security of the Company shall not, and shall not permit (including any share of its subsidiaries to, enter into any “non-compete,” “non-solicit” or similar agreement that would materially restrict the businesses of the Surviving Company or its subsidiaries or their ability to solicit customers or employees following the Effective TimeStock); (n) waive any stock repurchase rights, accelerate, amend or change the Company shall notperiod of exercisability of options or restricted stock, and shall not permit reprice options granted under any employee, consultant, director, or other stock plans or authorize cash payments in exchange for any options granted under any of its subsidiaries to, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entityplans; (o) transfer or license to any Person or otherwise extend, amend or modify any rights to the Company shall not, and shall not permit any Intellectual Property of its subsidiaries to, change its methods of accounting (other than Tax accounting, which shall be governed by clause (p) below), except in accordance with changes in GAAP as concurred to by the Company’s independent auditors; (p) the Company shall not, and shall not permit any of its subsidiaries to, (i) enter into any closing agreement with respect new Material Contract, or (ii) Materially modify, amend or terminate any Material Contract to material Taxeswhich the Company is a party or waive, settle release, or compromise assign any material liability for TaxesMaterial rights or claims thereunder, make, revoke or change in any material Tax election, agree such case in a manner Materially adverse to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax rulingParent; (q) take any actions that would make any representation and warranty of the Company shall not, and shall not permit hereunder inaccurate in any of its subsidiaries to, enter into any new, or amend or otherwise alter any Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to Material respect at the date hereof;Effective Time; or (r) the Company shall not, and shall not permit any of its subsidiaries to, make any loans to any individual (other than advances of out-of-pocket business expenses to employees, contractors or consultants in the ordinary course of business and consistent with past practices) or make any material loans, advances or capital contributions toauthorize any, or investments incommit or agree to take any of, any other person in excess of $500,000 in the aggregate for all such loans, advances, contributions and investments, except for transactions solely among the Company and/or wholly-owned subsidiaries of the Company; and (s) the Company shall not and shall not permit any of its subsidiaries (as applicable) to agree or formally commit to do any of the foregoingforegoing actions.

Conduct of the Company Business. The Company covenants and agrees that, between Prior to the date of this Agreement and the Effective TimeClosing Date, except (i) with the prior written consent of Parent, which may not be unreasonably withheld, delayed Parent or conditioned, (ii) as expressly contemplated by this Agreement or by the schedules hereto or (iii) for transactions between or among Agreement, the Company and its subsidiariesshall: (a) conduct its business in substantially the respective businesses of the Company same manner as presently being conducted and the Company Material Subsidiaries shall be conducted in the ordinary course and in a manner consistent with past practice, in each case in all material respects; (b) except to the extent required to comply with applicable law and refrain from entering into any transaction or Contract other than bylaw amendments that are not detrimental to the interests of the Company’s stockholders, the Company shall not amend or otherwise change its certificate of incorporation or bylaws; (c) the Company shall not, and shall not permit any of the Company Material Subsidiaries to, issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of any class of the Company or any Company Material Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, of the Company or any Company Material Subsidiary (except in accordance with the terms of securities outstanding on the date hereof or any existing employee ownership or benefit plan and in accordance with the Company Rights Plan); (d) the Company shall not (A) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for regular quarterly dividends by the Company in the ordinary course of business and consistent with past practices; and not make any Material change in excess its methods of the amount paid for the most recent quarter) or (B) reclassifymanagement, combinemarketing, split or subdivideaccounting, or redeemoperations; (b) obtain approval from Parent prior to undertaking any Material new business opportunity outside the ordinary course of business; (c) confer at the request of Parent with one or more designated representatives of Parent to report Material operational matters and to report the general status of ongoing business operations; (d) notify Parent of any governmental complaints, purchase investigations or otherwise acquirehearings (or communications indicating that the same may be contemplated), directly adjudicatory proceedings or indirectly, submissions involving any of its capital stockMaterial property or other Material Assets; (e) the Company shall not, and shall not permit its subsidiaries to, (i) acquire (includinggrant of any severance or termination pay to any current or former director, without limitationofficer or employee of the Company, by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or any division thereof or any amount of assets in excess of $5,000,000 in the aggregate; (ii) incur enter into of any indebtedness for borrowed money employment, deferred compensation or issue other similar agreement (or any debt securities amendment to any such existing agreement) with any current or assumeformer director, guarantee officer or endorseemployee of the Company, (iii) increase in benefits payable under any existing severance or termination pay policies or employment agreements, (iv) increase in compensation, bonus or other benefits payable or otherwise as an accommodation become responsible formade available to current or former directors, officers or employees of the obligations of any person Company (other than in the Company or any ordinary course of its subsidiariesbusiness salary increases for employees other than officers and directors), (v) declare or make pay of any loans bonuses or advancesyear-end payments to any current or former directors, officers or employees of the Company, or (vi) establish, adopt, or amend (except as required by applicable Law), any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer or employee of the Company; (f) except in the ordinary course of business and consistent with past practice and practices, not (i) create or incur any indebtedness (or, even if in the ordinary course of business, not in excess of $1,000,000 50,000 in the aggregate; ), or (iiiii) enter into release or amend create any contract, agreement, commitment or arrangement with respect to Liens of any matter set forth in this paragraph (e)nature whatsoever except for Permitted Liens; (fg) except in the Company shall notordinary course of business and, and shall even if in the ordinary course of business, then not permit its subsidiaries toin an amount to exceed $25,000 individually or $50,000 in the aggregate, increase materially the compensation payable not make or commit to become payable to, or grant make any severance or termination pay to, its officers or employees, except pursuant to existing contractual arrangementscapital expenditure, or enter into any employment lease of capital equipment as lessee or severance agreement with, any director, officer or other employee of the Company or any of its subsidiaries, or except as required by law establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that (i) the Company shall not take any of the foregoing actions with respect to any officer or director who has entered into an employment agreement (“Employment Agreement”) with the Company attached as an exhibit to the Company’s most recent annual report on Form 10-K included in the Company SEC Reports and (ii) with respect to all other employees, the Company shall be permitted to increase salaries in an aggregate amount not to exceed $1.55 million on an annual basis. Notwithstanding any provision of this Agreement to the contrary, the Company shall (i) establish an irrevocable rabbi trust as described in Section 4.1(f) of the Company Schedule and (ii) amend each Employment Agreement to provide that the bonus paid in 2006 in respect of the 2005 fiscal year will be used for purposes of calculating Severance Amounts (as defined in the Employment Agreement); (g) the Company shall not, and shall not permit any of its subsidiaries to, make any capital expenditures in any fiscal quarter exceeding its capital expenditure budget (a copy of which is attached as Section 4.1(g) of the Company Schedule) for such fiscal quarter by more than $5,000,000lessor; (h) pay, prepay or discharge any liability other than in the Company shall notordinary course of business or fail to pay any liability when due; (i) write-off or write-down any assets of the Company; (j) not amend the Articles of Incorporation, Bylaws or other governing instruments of the Company, except as contemplated by this Agreement; (k) not make any changes in its accounting methods or practices or revalue its Assets, except for (i) those changes required by GAAP, and shall (ii) changes in its tax accounting methods or practices that may be necessitated by changes in applicable Tax laws; (l) not permit any of its subsidiaries to, purchaseissue, sell, transferpledge, assignencumber, farm-outauthorize the issuance of, mortgageenter into any Contract to issue, encumber sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of the Company Stock; (m) not sell or otherwise dispose of any properties Material Asset or assets having a value in excess of $5,000,000 make any Material commitment relating to its Assets other than in the aggregateordinary course of business or enter into or terminate any lease of real property other than in the ordinary course of business; (in) not purchase or redeem, or agree to purchase or redeem, any security of the Company shall not(including any share of Company Stock); (o) not transfer or license to any Person or otherwise extend, and shall not permit amend or modify any rights to the Intellectual Property of its subsidiaries tothe Company, enter into any hedging agreements whether or not other than in the ordinary course of business consistent with past practice; (jp) except not (i) enter into any new Material Contract, other than in the ordinary course of business consistent with past practicepractices, the Company shall notor (ii) Materially modify, and shall not permit any of its subsidiaries to, enter into, renew, extend, materially amend or terminate any Company Material Contract or Contract to which if entered into prior to the date hereof would be a Company Material Contract; (k) the Company shall not, and shall not permit any of its subsidiaries to, is a party or waive, release, assign, settle or compromise assign any claim, action Material rights or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the financial statements contained in the Company SEC Documents, or that involve only the payment of monetary damages not in excess of $5,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amountclaims thereunder, in each case, other than any such case in the ordinary course consistent with past practice; (l) the Company shall not, and shall not permit any of its subsidiaries to, take or omit a manner Materially adverse to take any action that would reasonably be expected to, individually or in the aggregate, result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; (m) the Company shall not, and shall not permit any of its subsidiaries to, enter into any “non-compete,” “non-solicit” or similar agreement that would materially restrict the businesses of the Surviving Company or its subsidiaries or their ability to solicit customers or employees following the Effective Time; (n) the Company shall not, and shall not permit any of its subsidiaries to, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity; (o) the Company shall not, and shall not permit any of its subsidiaries to, change its methods of accounting (other than Tax accounting, which shall be governed by clause (p) below), except in accordance with changes in GAAP as concurred to by the Company’s independent auditors; (p) the Company shall not, and shall not permit any of its subsidiaries to, enter into any closing agreement with respect to material Taxes, settle or compromise any material liability for Taxes, make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax rulingParent; (q) not take any actions that would make any representation and warranty of the Company shall not, and shall not permit hereunder inaccurate in any of its subsidiaries to, enter into any new, or amend or otherwise alter any Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to Material respect at the date hereof;Effective Time; or (r) the Company shall not, and shall not permit any of its subsidiaries to, make any loans to any individual (other than advances of out-of-pocket business expenses to employees, contractors or consultants in the ordinary course of business and consistent with past practices) or make any material loans, advances or capital contributions toauthorize any, or investments incommit or agree to take any of, any other person in excess of $500,000 in the aggregate for all such loans, advances, contributions and investments, except for transactions solely among the Company and/or wholly-owned subsidiaries of the Company; and (s) the Company shall not and shall not permit any of its subsidiaries (as applicable) to agree or formally commit to do any of the foregoingforegoing actions.

Conduct of the Company Business. The Except as set forth in Schedule 5.1 of the Company covenants and agrees thatDisclosure Schedule, between prior to the date of this Agreement and the Effective TimeClosing Date, except (i) with the prior written consent of Parent, which may not be unreasonably withheld, delayed Parent or conditioned, (ii) as expressly contemplated by this Agreement or by the schedules hereto or (iii) for transactions between or among Agreement, the Company and its subsidiariesshall: (a) conduct its business in substantially the respective businesses of the Company same manner as presently being conducted and the Company Material Subsidiaries shall be conducted in the ordinary course and in a manner consistent with past practice, in each case in all material respects; (b) except to the extent required to comply with applicable law and refrain from entering into any transaction or Contract other than bylaw amendments that are not detrimental to the interests of the Company’s stockholders, the Company shall not amend or otherwise change its certificate of incorporation or bylaws; (c) the Company shall not, and shall not permit any of the Company Material Subsidiaries to, issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of any class of the Company or any Company Material Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, of the Company or any Company Material Subsidiary (except in accordance with the terms of securities outstanding on the date hereof or any existing employee ownership or benefit plan and in accordance with the Company Rights Plan); (d) the Company shall not (A) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for regular quarterly dividends by the Company in the ordinary course of business and consistent with past practices; and not make any change in excess its methods of the amount paid for the most recent quarter) or management, marketing, accounting (B) reclassify, combine, split or subdivideexcept as required by GAAP), or redeemoperations; (b) obtain approval from Parent prior to undertaking any Material new business opportunity outside the ordinary course of business; (c) confer at the request of Parent with one or more designated representatives of Parent to report Material operational matters and to report the general status of ongoing business operations; (d) notify Parent of any governmental complaints, purchase investigations or otherwise acquirehearings (or communications indicating that the same may be contemplated), directly adjudicatory proceedings or indirectly, submissions involving any of its capital stockMaterial property or other Material Assets; (e) the Company shall notexcept as contemplated by this Agreement, and shall not permit its subsidiaries to, (i) acquire (includinggrant any severance or termination pay to any current or former director, without limitationofficer or employee of the Company, by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or any division thereof or any amount of assets in excess of $5,000,000 in the aggregate; (ii) incur enter into any indebtedness for borrowed money employment, deferred compensation or issue other similar agreement (or any debt securities amendment to any such existing agreement) with any current or assumeformer director, guarantee officer or endorseemployee of the Company except as contemplated herein, (iii) increase benefits payable under any existing severance or termination pay policies or employment agreements, (iv) increase compensation, bonus or other benefits payable or otherwise as an accommodation become responsible formade available to current or former directors, officers or employees of the obligations of any person Company (other than in the Company or any ordinary course of its subsidiariesbusiness salary increases for employees other than officers and directors), (v) declare or make pay any loans bonuses or advancesyear-end payments to any current or former directors, officers or employees of the Company, or (vi) establish, adopt, or amend (except as required by applicable Law), any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer or employee of the Company; (f) except in the ordinary course of business and consistent with past practice and practices, not (i) create or incur any indebtedness (or, even if in the ordinary course of business, not in excess of $1,000,000 50,000 in the aggregate; ), or (iiiii) enter into release or amend create any contract, agreement, commitment or arrangement with respect to Liens of any matter set forth in this paragraph (e)nature whatsoever except for Permitted Liens; (fg) except in the Company shall notordinary course of business and, and shall even if in the ordinary course of business, then not permit its subsidiaries toin an amount to exceed $25,000 individually or $50,000 in the aggregate, increase materially the compensation payable not make or commit to become payable to, or grant make any severance or termination pay to, its officers or employees, except pursuant to existing contractual arrangementscapital expenditure, or enter into any employment lease of capital equipment as lessee or severance agreement with, any director, officer or other employee of the Company or any of its subsidiaries, or except as required by law establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that (i) the Company shall not take any of the foregoing actions with respect to any officer or director who has entered into an employment agreement (“Employment Agreement”) with the Company attached as an exhibit to the Company’s most recent annual report on Form 10-K included in the Company SEC Reports and (ii) with respect to all other employees, the Company shall be permitted to increase salaries in an aggregate amount not to exceed $1.55 million on an annual basis. Notwithstanding any provision of this Agreement to the contrary, the Company shall (i) establish an irrevocable rabbi trust as described in Section 4.1(f) of the Company Schedule and (ii) amend each Employment Agreement to provide that the bonus paid in 2006 in respect of the 2005 fiscal year will be used for purposes of calculating Severance Amounts (as defined in the Employment Agreement); (g) the Company shall not, and shall not permit any of its subsidiaries to, make any capital expenditures in any fiscal quarter exceeding its capital expenditure budget (a copy of which is attached as Section 4.1(g) of the Company Schedule) for such fiscal quarter by more than $5,000,000lessor; (h) except as contemplated by this Agreement, pay, prepay or discharge any liability other than in the Company shall notordinary course of business or fail to pay any liability when due; (i) write-off or write-down any assets of the Company; (j) not amend the Certificate of Incorporation, Bylaws or other governing instruments of the Company, except as contemplated by this Agreement; (k) not make any changes in its accounting methods or practices or revalue its Assets, except for (i) those changes required by GAAP, and shall (ii) changes in its tax accounting methods or practices that may be necessitated by changes in applicable Tax Laws; (l) not permit any of its subsidiaries to, purchaseissue, sell, transferpledge, assignencumber, farm-outauthorize the issuance of, mortgageenter into any Contract to issue, encumber sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of the Company Stock, or any stock appreciation rights, or any option, warrant, conversion, or other right to acquire any such stock, or any security convertible into any such stock, or pay or declare or agree to pay or declare any dividend or other distribution with respect to any the Company Stock, except for shares to be issued pursuant to the Company Options outstanding under the Stock Plan; (m) not make any loan or otherwise arrange for the extension of credit to any Employee or increase the aggregate amount of any loan currently outstanding to any Employee; (n) not sell or otherwise dispose of any properties Material Asset or assets having a value in excess of $5,000,000 make any Material commitment relating to its Assets other than in the aggregateordinary course of business or enter into or terminate any lease of real property other than in the ordinary course of business; (io) not purchase or redeem, or agree to purchase or redeem, any security of the Company shall not(including any share of Company Stock); (p) not waive any stock repurchase rights, and shall not permit accelerate, amend or change the period of exercisability of options or restricted stock, except for acceleration of Company Options pursuant to any outstanding agreements under the Stock Plan or as otherwise contemplated herein, reprice options granted under any employee, consultant, director, or other stock plans or authorize cash payments in exchange for any options granted under any of its subsidiaries tosuch plans; (q) not transfer or license to any Person or otherwise extend, enter into amend or modify any hedging agreements whether or not rights to the Intellectual Property of the Company, other than in the ordinary course of business consistent with past practice; (jr) except not (i) enter into any new Material Contract, other than in the ordinary course of business consistent with past practicepractices, the Company shall notor any new customer agreement, and shall whether or not permit any of its subsidiaries toa Material Contract, enter intoor (ii) Materially modify, renew, extend, materially amend or terminate any Company Material Contract or Contract to which if entered into prior to the date hereof would be a Company Material Contract; (k) the Company shall not, and shall not permit any of its subsidiaries to, is a party or waive, release, assign, settle or compromise assign any claim, action Material rights or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the financial statements contained in the Company SEC Documents, or that involve only the payment of monetary damages not in excess of $5,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amountclaims thereunder, in each case, other than any such case in the ordinary course consistent with past practicea manner Materially adverse to Parent; (l) the Company shall not, and shall not permit any of its subsidiaries to, take or omit to take any action that would reasonably be expected to, individually or in the aggregate, result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; (m) the Company shall not, and shall not permit any of its subsidiaries to, enter into any “non-compete,” “non-solicit” or similar agreement that would materially restrict the businesses of the Surviving Company or its subsidiaries or their ability to solicit customers or employees following the Effective Time; (n) the Company shall not, and shall not permit any of its subsidiaries to, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity; (o) the Company shall not, and shall not permit any of its subsidiaries to, change its methods of accounting (other than Tax accounting, which shall be governed by clause (p) below), except in accordance with changes in GAAP as concurred to by the Company’s independent auditors; (p) the Company shall not, and shall not permit any of its subsidiaries to, enter into any closing agreement with respect to material Taxes, settle or compromise any material liability for Taxes, make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax ruling; (q) the Company shall not, and shall not permit any of its subsidiaries to, enter into any new, or amend or otherwise alter any Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to the date hereof; (r) the Company shall not, and shall not permit any of its subsidiaries to, make any loans to any individual (other than advances of out-of-pocket business expenses to employees, contractors or consultants in the ordinary course of business and consistent with past practices) or make any material loans, advances or capital contributions to, or investments in, any other person in excess of $500,000 in the aggregate for all such loans, advances, contributions and investments, except for transactions solely among the Company and/or wholly-owned subsidiaries of the Company; and (s) not take any actions that could reasonably be expected to result in a Material Adverse Effect on the Company shall not and shall not permit Company; or (t) authorize any, or commit or agree to take any of its subsidiaries (as applicable) to agree or formally commit to do any of of, the foregoingforegoing actions.

Conduct of the Company Business. The Company covenants and agrees that, between Prior to the date of this Agreement and the Effective TimeClosing Date, except (i) with the prior written consent of ParentParent or as expressly contemplated by this Agreement, which the Company shall: (a) conduct its business in substantially the same manner as presently being conducted in the ordinary course of business consistent with past practices; and not make any Material change in its methods of management, marketing, accounting (except as required by GAAP), or operations; (b) obtain approval from Parent prior to undertaking any Material new line of business outside the ordinary course of business; (c) confer at the request of Parent with one or more designated representatives of Parent to report Material operational matters and to report the general status of ongoing business operations; (d) notify Parent of any governmental complaints, investigations or hearings (or communications indicating that the same may not be unreasonably withheldcontemplated), delayed adjudicatory proceedings or conditioned, submissions involving any Material property or other Material Assets; (iie) except as contemplated by this Agreement or by in the schedules hereto Company Disclosure Schedule, not (i) grant any severance or termination pay to any current or former director, officer or employee of the Company, (ii) enter into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any current or former director, officer or employee of the Company except as contemplated herein, (iii) for transactions between increase benefits payable under any existing severance or among the Company and its subsidiaries: termination pay policies or employment agreements, (aiv) the respective businesses increase compensation, bonus or other benefits payable or otherwise made available to current or former directors, officers or employees of the Company and the Company Material Subsidiaries shall be conducted in the ordinary course and in a manner consistent with past practice, in each case in all material respects; (b) except to the extent required to comply with applicable law and other than bylaw amendments that are not detrimental to the interests of the Company’s stockholders, the Company shall not amend or otherwise change its certificate of incorporation or bylaws; (c) the Company shall not, and shall not permit any of the Company Material Subsidiaries to, issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of any class of the Company or any Company Material Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, of the Company or any Company Material Subsidiary (except in accordance with the terms of securities outstanding on the date hereof or any existing employee ownership or benefit plan and in accordance with the Company Rights Plan); (d) the Company shall not (A) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for regular quarterly dividends by the Company in the ordinary course of business not in excess salary increases for employees other than officers and directors), (v) declare or pay any bonuses or year-end payments to any current or former directors, officers or employees of the amount paid for the most recent quarter) Company, or (Bvi) reclassifyestablish, combine, split or subdivideadopt, or redeem, purchase amend (except as required by applicable Law or otherwise acquire, directly or indirectlycontemplated in Section 9.2(k)), any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer or employee of its capital stockthe Company; (ef) the Company shall not, and shall not permit its subsidiaries to, (i) acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or any division thereof or any amount of assets in excess of $5,000,000 in the aggregate; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than the Company or any of its subsidiaries), or make any loans or advances, except in the ordinary course of business and consistent with past practice and practices, not (i) create or incur any indebtedness and, even if in the ordinary course of business, then not in excess of $1,000,000 50,000 in the aggregate; , or (iiiii) enter into release or amend create any contractLiens of any nature whatsoever except for Permitted Liens; (g) except in the ordinary course of business and, agreement, commitment or arrangement with respect to any matter even if in the ordinary course of business except as set forth in this paragraph (eSchedule 5.1(g); (f) , then not in an amount to exceed $25,000 individually or $50,000 in the Company shall notaggregate, and shall not permit its subsidiaries to, increase materially the compensation payable make or commit to become payable to, or grant make any severance or termination pay to, its officers or employees, except pursuant to existing contractual arrangementscapital expenditure, or enter into any employment lease of capital equipment as lessee or severance agreement with, any director, officer or other employee of the Company or any of its subsidiaries, or except as required by law establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that (i) the Company shall not take any of the foregoing actions with respect to any officer or director who has entered into an employment agreement (“Employment Agreement”) with the Company attached as an exhibit to the Company’s most recent annual report on Form 10-K included in the Company SEC Reports and (ii) with respect to all other employees, the Company shall be permitted to increase salaries in an aggregate amount not to exceed $1.55 million on an annual basis. Notwithstanding any provision of this Agreement to the contrary, the Company shall (i) establish an irrevocable rabbi trust as described in Section 4.1(f) of the Company Schedule and (ii) amend each Employment Agreement to provide that the bonus paid in 2006 in respect of the 2005 fiscal year will be used for purposes of calculating Severance Amounts (as defined in the Employment Agreement); (g) the Company shall not, and shall not permit any of its subsidiaries to, make any capital expenditures in any fiscal quarter exceeding its capital expenditure budget (a copy of which is attached as Section 4.1(g) of the Company Schedule) for such fiscal quarter by more than $5,000,000lessor; (h) except as contemplated by this Agreement and except for the Company shall notTransaction Expenses, pay, prepay or discharge any Material liability other than in the ordinary course of business or fail to pay any liability when due; (i) write-off or write-down any Assets of the Company, except in the ordinary course of business; (j) not amend the Articles of Incorporation, Bylaws or other governing instruments of the Company, except as contemplated by this Agreement; (k) not make any changes in its accounting methods or practices or revalue its Assets, except for (i) those changes required by GAAP, and shall (ii) changes in its tax accounting methods or practices that may be necessitated by changes in applicable Tax Laws; (l) not permit any of its subsidiaries to, purchaseissue, sell, transferpledge, assignencumber, farm-outauthorize the issuance of, mortgageenter into any Contract to issue, encumber sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of the Company Stock, or any stock appreciation rights, or any option, warrant, conversion, or other right to acquire any such stock, or any security convertible into any such stock, or pay or declare or agree to pay or declare any dividend or other distribution with respect to any the Company Stock, except for shares to be issued pursuant to outstanding Company Warrants and the Company Options; (m) not make any loan or otherwise arrange for the extension of credit to any Employee or increase the aggregate amount of any loan currently outstanding to any Employee; (n) not sell or otherwise dispose of any properties Material Asset or assets having a value in excess of $5,000,000 make any Material commitment relating to its Assets other than in the aggregateordinary course of business or enter into or terminate any lease of real property other than in the ordinary course of business; (io) not purchase or redeem, or agree to purchase or redeem, any security of the Company shall not(including any share of Company Stock) except pursuant to arrangements described in the Company Disclosure Schedule or as otherwise contemplated herein; (p) not waive any stock repurchase rights, and shall not permit accelerate, amend or change the period of exercisability of options or restricted stock, except for acceleration of Company Options pursuant to any outstanding agreements under the Company Option Plan or as otherwise contemplated herein, reprice options granted under any employee, consultant, director, or other stock plans or authorize cash payments in exchange for any options granted under any of its subsidiaries tosuch plans; (q) not transfer or license to any Person or otherwise extend, enter into amend or modify any hedging agreements whether or not rights to the Company Intellectual Property, other than in the ordinary course of business consistent with past practice; (jr) except not (i) enter into any new Material Contract, other than in the ordinary course of business consistent with past practice, the Company shall not, and shall not permit any of its subsidiaries to, enter into, renew, extend, materially amend practices or terminate any Company Material Contract or Contract which if entered into prior to the date hereof would be a Company Material Contract; (k) the Company shall not, and shall not permit any of its subsidiaries to, waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the financial statements contained in the Company SEC Documents, or that involve only the payment of monetary damages not in excess of $5,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amount, in each case, other than in the ordinary course consistent with past practice; (l) the Company shall not, and shall not permit any of its subsidiaries to, take or omit to take any action that would reasonably be expected to, individually or in the aggregate, result in any of the conditions to the Merger except as set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; (m) the Company shall not, and shall not permit any of its subsidiaries to, enter into any “non-compete,” “non-solicit” or similar agreement that would materially restrict the businesses of the Surviving Company or its subsidiaries or their ability to solicit customers or employees following the Effective Time; (n) the Company shall not, and shall not permit any of its subsidiaries to, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity; (o) the Company shall not, and shall not permit any of its subsidiaries to, change its methods of accounting (other than Tax accounting, which shall be governed by clause (p) belowSchedule 5.1(r), or (ii) except in accordance with changes in GAAP as concurred to contemplated by the Company’s independent auditors; (p) the Company shall not, and shall not permit any of its subsidiaries to, enter into any closing agreement with respect to material Taxes, settle this Agreement or compromise any material liability for Taxes, make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax ruling; (q) the Company shall not, and shall not permit any of its subsidiaries to, enter into any new, or amend or otherwise alter any Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to the date hereof; (r) the Company shall not, and shall not permit any of its subsidiaries to, make any loans to any individual (other than advances of out-of-pocket business expenses to employees, contractors or consultants in the ordinary course of business and consistent with past practices) business, Materially modify, amend or make terminate any material loansMaterial Contract to which the Company is a party or waive, advances or capital contributions torelease, or investments inassign any Material rights or claims thereunder, in any other person such case in excess of $500,000 in the aggregate for all such loans, advances, contributions and investments, except for transactions solely among the Company and/or wholly-owned subsidiaries of a manner Materially adverse to the Company; and; (s) not take any actions that could reasonably be expected to result in a Material Adverse Effect on the Company shall not and shall not permit Company; or (t) authorize any of its subsidiaries (as applicable) of, or commit or agree to agree or formally commit to do take any of of, the foregoingforegoing actions.

Conduct of the Company Business. (a) The Company covenants and agrees as to itself and its direct or indirect subsidiaries that, between from the date of this Agreement and until the earlier of the Effective TimeTime and termination of this Agreement in accordance with Section 8.1, except (i) with as required or specifically permitted by any other provision (including Section 5.1(b)) of this Agreement (or as set forth in Section 5.1 of the prior written consent of Parent, which may not be unreasonably withheld, delayed or conditionedCompany Disclosure Letter), (ii) as contemplated required by this Agreement or by the schedules hereto applicable Law or (iii) for transactions between with Parent’s written consent (such consent not to be unreasonably withheld, conditioned or among delayed), the Company and its subsidiaries: (a) the respective businesses of direct and indirect subsidiaries shall conduct the Company and the Company Material Subsidiaries shall be conducted Business in the ordinary course and in a manner consistent with past practice, in each case of business in all material respects;respects and, to the extent consistent therewith, use their reasonable best efforts to (A) preserve the Company’s assets and business organization and maintain its existing relations and goodwill with material customers, suppliers, distributors, regulators and business partners and (B) preserve its existing relationship with Xxxxxx. (b) except Except as required or specifically permitted by this Agreement (or as set forth in Section 5.1 of the Company Disclosure Letter) or as required by applicable Law, from the date of this Agreement until the earlier of the Effective Time and termination of this Agreement in accordance with Section 8.1, unless Parent otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), neither the extent required Company nor any of its direct or indirect subsidiaries shall or may take any of the following actions (it being understood and agreed that if any action is permitted by any of the following subsections pursuant to comply with applicable law and other than bylaw amendments an express exclusion from conduct that are not detrimental to would otherwise be prohibited, such action shall be permitted under Section 5.1(a)): (i) amend the interests Company Charter Documents or the organizational or governing documents of any of the Company’s stockholders, the Company shall not amend or otherwise change its certificate of incorporation or bylawssubsidiaries; (cii) the Company shall not(A) issue, and shall not permit any of the Company Material Subsidiaries to, issuedeliver, sell, pledgegrant, dispose of, grant, encumber, pledge or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, otherwise encumber any shares of capital stock of any class or any other Equity Interest of the Company or any of its direct or indirect subsidiaries (the “Company Material SubsidiarySecurities”), or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any Company Securities, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any Company Securities, in each case to or in favor of a person other than the Company or a wholly owned subsidiary of the Company, provided that the Company may issue shares of Company Common Stock solely upon the exercise or settlement of Company Options, Non-Employee Director Options, Company Restricted Stock Units, Non-Employee Director Restricted Stock Units, Company Performance Stock Units and purchase rights under the ESPP that are outstanding on the date of this Agreement in accordance with their terms as of the date of this Agreement; (B) redeem, purchase or otherwise acquire any outstanding Company Securities, or any rights, warrants, options, calls, commitments, convertible securities or any other agreements of any character to acquire any Company Securities, except in connection with the exercise or settlement of Company Options, Non-Employee Director Options, Company Restricted Stock Units, Non-Employee Director Restricted Stock Units or Company Performance Stock Units that are outstanding on the date of this Agreement and in accordance with their terms as of the date of this Agreement; (C) adjust, split, combine, subdivide or reclassify any Company Securities; (D) enter into, amend or waive any of the rights under any Contract with respect to the sale or repurchase of any Company Securities; or (E) except as expressly required by the terms of this Agreement, amend (including by reducing an exercise price or extending a term) or waive any of its rights under any agreement evidencing any outstanding Company Options, Non-Employee Director Options, Company Restricted Stock Units, Non-Employee Director Restricted Stock Units, Company Performance Stock Units or the ESPP; (iii) directly or indirectly acquire or agree to acquire in any transaction any Equity Interest in, or business of, any firm, corporation, partnership, company, limited liability company, trust, joint venture, association or other entity or division thereof or the purchase (including by license, collaboration or joint development agreement) directly or indirectly of any properties or assets (other than purchases of supplies and inventory in the ordinary course of business consistent with the Company’s past practice), if such acquisition would reasonably be expected to violate Section 6.5(g) and/or the aggregate amount of all consideration to be paid or transferred by the Company and its subsidiaries in connection with all such transactions (including the assumption of liabilities) would reasonably be expected to exceed $50,000,000; (iv) sell, pledge, dispose of, transfer, abandon, lease, license, mortgage or otherwise encumber or incur any Lien (including pursuant to a sale-leaseback transaction or an asset securitization transaction) (other than a Company Permitted Lien) on, any properties, rights or assets (including securities of the Company and its subsidiaries and the Company Intellectual Property) with a fair market value in excess of $25,000,000 in the aggregate, except (A) sales of inventory in the ordinary course of business consistent with the Company’s past practices, (B) as required to be effected prior to the Effective Time pursuant to Contracts in force on the date of this Agreement and listed on Section 5.1(b)(iv) of the Company Disclosure Letter, (C) transfers among the Company and its wholly-owned subsidiaries or (D) dispositions of obsolete assets or expired inventory; (v) incur, create, assume or otherwise become liable for any Indebtedness (of the type described in clauses (i) through (iii) of the definition thereof, including the issuance of any debt security and the assumption or guarantee of obligations of any person) (or enter into a “keep well” or similar agreement), or issue or sell any debt securities or options, warrants, convertible securities calls or other rights of any kind to acquire any shares of such capital stock, debt securities of the Company or any Company Material Subsidiary Company, in amounts in excess of $25,000,000 in the aggregate, except for (except in accordance with the terms of securities outstanding on the date hereof or any existing employee ownership or benefit plan and in accordance with A) Indebtedness among the Company Rights Plan)and any of its wholly-owned subsidiaries, (B) letters of credit issued in the ordinary course of business, and (C) trade credit or trade payables in the ordinary course of business; (d) the Company shall not (Avi) declare, set aside, make or pay any dividend or other distribution, whether payable in cash, stock, property or otherwise, in respect of the Company Common Stock, Company Preferred Stock or Equity Interests of any non-wholly owned subsidiary of the Company; provided, that the Company may continue the declaration and payment of regular quarterly cash dividends on Company Common Stock, not to exceed $0.07 per share for each quarterly dividend, with record and payment dates for such dividends consistent with past record and payment dates; (vii) other than as required by applicable Law or the terms of a Company Equity Plan or a Company Plan, (A) increase in any material respect to the compensation or benefits (including severance benefits) of any of its capital stock (except for regular quarterly dividends by directors, officers or employees or independent contractors or consultants, other than an increase in the salary or wages of any employee of the Company or its subsidiaries with an annual base compensation of less than $250,000 in the ordinary course of business not in excess of the amount paid for the most recent quarter) or business; (B) reclassifymake any new equity or equity-based awards to any current or former director, combineofficer, split employee, independent contractor or subdivideconsultant of the Company; (C) take any action to accelerate the vesting or payment, or redeemprefund or in any other way secure the payment of, purchase compensation or otherwise acquirebenefits under the Company Equity Plan or a Company Plan; (D) enter into, directly negotiate, establish, amend or indirectlyterminate any Company Plan (including any arrangement that would be a Company Plan if in effect on the date hereof) or any Collective Bargaining Agreement; or (E) materially change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except insofar as may be required by GAAP, applicable Law or regulatory guidelines; (viii) communicate in a writing that is intended for broad dissemination to the Company’s (or any of its capital stocksubsidiary’s) employees regarding compensation, benefits or other treatment they will receive following the Merger, unless any such communication is consistent with Section 2.4 or Section 5.6 of this Agreement (in which case, the Company shall provide Parent with prior notice of, and the opportunity to review and comment upon, any such communications); (eix) make any material changes in financial accounting methods, principles or practices (or change an annual accounting period), except insofar as may be required by GAAP, applicable Law or regulatory guidelines; (x) write up, write down or write off the Company shall notbook value of any material assets, except to the extent required by GAAP; (xi) release, compromise, assign, settle or agree to settle any Action (including without limitation any suit, action, claim, proceeding or investigation relating to this Agreement or the Merger and shall the other the transactions contemplated hereby with adverse parties other than Parent or Sub) or insurance claim, other than compromises, settlements or agreements that involve only monetary payments not permit its subsidiaries to, (i) acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or any division thereof or any amount of assets in excess of $5,000,000 individually or $10,000,000 in the aggregate; (ii) incur , in any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorsecase without the imposition of material equitable relief on, or otherwise as an accommodation become responsible forthe admission of wrongdoing by, the obligations of any person (other than the Company or any of its subsidiaries; (xii) to the extent such action would be reasonably likely to materially affect the Company and its subsidiaries, taken as a whole, (A) make, change or revoke any Tax election or adopt or change any method of Tax accounting, (B) enter into any “closing agreement” as described in Section 7121 of the Code (or any comparable or similar provisions of applicable Law), settle or compromise any liability with respect to Taxes or surrender any claim for a refund of Taxes, (C) file any amended Tax Return, or (D) consent to any extension or waiver of the limitations period applicable to any claim or assessment in respect of Taxes; (xiii) make or commit to any loans capital expenditures, which (A) would include the purchase of real property not reflected in the capital expenditure budgets made available to Parent by the Company prior to the date hereof (the “CapEx Budget”) or advances(B)(1) for a single project with a budget of $20 million or more as reflected in the CapEx Budget, except have an aggregate value in excess of 120% of such budgeted amounts or (2) for all capital expenditures, have an aggregate value in excess of 125% of the budgeted amount reflected in the CapEx Budget (other than, in the case of clause (B), any capital expenditure in response to emergency events such as natural disasters, wars, terrorism activities, or public health emergencies); provided that clause (B) shall exclude any expenditures on the Company’s facility in Covington, Georgia and the Company may not make or commit to any capital expenditures in excess of the aggregate budgeted amounts for such project as reflected in the CapEx Budget; (xiv) (A) enter into or terminate any Company Material Contract (other than a confidentiality agreement as contemplated by Section 5.4), (B) materially modify, materially amend, waive any material right under or renew any Company Material Contract, other than (in the case of this clause (B)) in the ordinary course of business and consistent with the Company’s past practice and not in excess of $1,000,000 in the aggregate; or practice, (iiiC) enter into or amend extend the term or scope of those provisions of any contractmaterial Contract that purport to restrict the Company, agreementor any of its subsidiaries or affiliates or any successor thereto, commitment from engaging or arrangement competing in any line of business or in any geographic area, or (D) enter into any material Contract that would be breached by, or require the consent of any third party in order to continue in full force following, consummation of the Merger and the other transactions contemplated hereby; (xv) cancel, dedicate to the public, disclaim, forfeit, reissue, reexamine, abandon without filing a substantially identical counterpart in the same jurisdiction with the same priority, or allow to lapse (except with respect to issued Patents expiring in accordance with their terms) any matter set forth in this paragraph (e)Material Company Intellectual Property; (fxvi) the Company shall notannounce, and shall not permit its subsidiaries toimplement or effect any facility closing, increase materially the compensation payable lay-off, early retirement programs, severance programs or to become payable to, or grant any severance or termination pay to, its officers or employees, except pursuant to existing contractual arrangements, or enter into any employment or severance agreement with, any director, officer or other employee reductions in force affecting employees of the Company or any of its subsidiaries, or except as required by law establishother than, adoptsubject to clause (xviii) below, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, such action conducted in compliance with applicable Law and not giving rise to more than $10,000,000 in severance or and other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that (i) the Company shall not take any of the foregoing actions with respect liability related to any officer or director who has entered into an employment agreement (“Employment Agreement”) with the Company attached as an exhibit to the Company’s most recent annual report on Form 10-K included in the Company SEC Reports and (ii) with respect to all other employees, the Company shall be permitted to increase salaries in an aggregate amount not to exceed $1.55 million on an annual basis. Notwithstanding any provision of this Agreement to the contrary, the Company shall (i) establish an irrevocable rabbi trust as described in Section 4.1(f) of the Company Schedule and (ii) amend each Employment Agreement to provide that the bonus paid in 2006 in respect of the 2005 fiscal year will be used for purposes of calculating Severance Amounts (as defined in the Employment Agreement)such action; (gxvii) make any loan or advance (other than travel and similar advances to its employees in the Company shall not, and shall not permit any ordinary course of its subsidiaries business) to, make any capital expenditures in any fiscal quarter exceeding its capital expenditure budget (a copy of which is attached as Section 4.1(g) of the Company Schedule) for such fiscal quarter by more than $5,000,000; (h) the Company shall not, and shall not permit any of its subsidiaries to, purchase, sell, transfer, assign, farm-out, mortgage, encumber or otherwise dispose of any properties or assets having a value person in excess of $5,000,000 10,000,000 in the aggregate; (ixviii) hire or offer employment or engagement to, or terminate (other than for cause) the Company shall notemployment or engagement of, and shall not permit any of its subsidiaries to, enter into any hedging agreements whether (A) executive officer or not in the ordinary course of business consistent (B) employee or individual consultant with past practice; (j) except in the ordinary course of business consistent with past practice, the Company shall not, and shall not permit any of its subsidiaries to, enter into, renew, extend, materially amend or terminate any Company Material Contract or Contract which if entered into prior to the date hereof would be a Company Material Contract; (k) the Company shall not, and shall not permit any of its subsidiaries to, waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the financial statements contained in the Company SEC Documents, or that involve only the payment of monetary damages not annual base compensation in excess of $5,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amount, in each case, other than in the ordinary course consistent with past practice250,000; (lxix) fail to maintain in effect material insurance policies covering the Company shall not, and shall not permit any of its subsidiaries toand their respective properties, take or omit to take any action that would reasonably be expected to, individually or in the aggregate, result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreementassets and businesses; (mxx) merge or consolidate the Company shall not, and shall not permit with any of its subsidiaries to, enter into any “non-compete,” “non-solicit” person or similar agreement that would materially restrict the businesses of the Surviving Company or its subsidiaries or their ability to solicit customers or employees following the Effective Time; (n) the Company shall not, and shall not permit any of its subsidiaries to, adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entitythe Company or any of its material subsidiaries; (oxxi) the Company shall not, and shall not permit (A) purchase any of its subsidiaries to, change its methods of accounting (other than Tax accounting, which shall be governed by clause (p) below), marketable securities except in accordance with changes the ordinary course of business, or (B) change in GAAP as concurred to by material manner the Company’s independent auditors; (p) the Company shall not, and shall not permit any of its subsidiaries to, enter into any closing agreement with respect to material Taxes, settle or compromise any material liability for Taxes, make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations investment guidelines with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax rulingCompany’s investment portfolio; (qxxii) the Company shall not, and shall not permit any of its subsidiaries to, enter into any new, or amend or otherwise alter any Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to the date hereof; (r) the Company shall not, and shall not permit any of its subsidiaries to, make forgive any loans to any individual (other than advances officers, employees or directors of out-of-pocket business expenses to employeesthe Company or its subsidiaries, contractors or consultants any of their respective affiliates, except in the ordinary course of business and consistent in connection with past practicesrelocation activities to any employees of the Company or its subsidiaries; (xxiii) or make take any material loans, advances or capital contributions to, or investments in, any other person in excess of $500,000 action that would be reasonably likely to result in the aggregate for all such loans, advances, contributions and investments, except for transactions solely among the Company and/or wholly-owned subsidiaries of the Company; and (s) the Company shall not and shall not permit or any of its subsidiaries (as applicable) being liable for a material amount to agree or formally commit to do any Xxxxxx under Article IV of the foregoingTax Matters Agreement; or (xxiv) authorize any of, or commit, resolve, or agree in writing or otherwise to take any of, the foregoing actions.

Conduct of the Company Business. The Except as set forth in Section 5.1 of the Company covenants and agrees thatDisclosure Schedule, between prior to the date of this Agreement and the Effective TimeClosing Date, except (i) with the prior written consent of Parent, which may not be unreasonably withheld, delayed SPI or conditioned, (ii) as expressly contemplated by this Agreement or by the schedules hereto or (iii) for transactions between or among Agreement, the Company and its subsidiariesMerger Sub shall: (a) the respective businesses of the Company and the Company obtain approval from SPI prior to undertaking any Material Subsidiaries shall be conducted in the ordinary course and in a manner consistent with past practice, in each case in all material respectsnew business opportunity; (b) except to notify SPI of any governmental complaints, investigations or hearings (or communications indicating that the extent required to comply with applicable law and same may be contemplated), adjudicatory proceedings or submissions involving any Material property or other than bylaw amendments that are not detrimental to the interests of the Company’s stockholders, the Company shall not amend or otherwise change its certificate of incorporation or bylawsMaterial Assets; (c) the Company shall not, and shall not permit any of the Company Material Subsidiaries to, issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, (i) grant or encumbrance of, any shares of capital stock of any class severance or termination pay to any current or former director, officer or employee of the Company or Merger Sub, (ii) enter into of any Company Material Subsidiaryemployment, deferred compensation or other similar agreement (or any optionsamendment to any such existing agreement) with any current or former director, warrants, convertible securities officer or other rights of any kind to acquire any shares of such capital stock, employee of the Company or any Company Material Subsidiary Merger Sub, (except iii) increase in accordance with the terms of securities outstanding on the date hereof or benefits payable under any existing employee ownership severance or benefit plan and termination pay policies or employment agreements, (iv) increase in accordance with compensation, bonus or other benefits payable or otherwise made available to current or former directors, officers or employees of the Company Rights Plan); or Merger Sub (d) the Company shall not (A) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for regular quarterly dividends by the Company than in the ordinary course of business not in excess of the amount paid salary increases for the most recent quarter) or (B) reclassify, combine, split or subdivide, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; (e) the Company shall not, employees other than officers and shall not permit its subsidiaries todirectors), (iv) acquire (including, without limitation, by merger, consolidation declare or acquisition of stock or assets) any corporation, partnership or other business organization or any division thereof or any amount of assets in excess of $5,000,000 in the aggregate; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations pay of any person (other than the Company bonuses or any of its subsidiaries), or make any loans or advances, except in the ordinary course of business and consistent with past practice and not in excess of $1,000,000 in the aggregate; or (iii) enter into or amend any contract, agreement, commitment or arrangement with respect year-end payments to any matter set forth in this paragraph (e); (f) the Company shall notcurrent or former directors, and shall not permit its subsidiaries to, increase materially the compensation payable or to become payable to, or grant any severance or termination pay to, its officers or employees, except pursuant to existing contractual arrangements, or enter into any employment or severance agreement with, any director, officer or other employee employees of the Company or any of its subsidiariesMerger Sub, or (vi) establish, adopt, or amend (except as required by law establishapplicable Law), adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employmentcompensation, terminationstock option, severance restricted stock or other plan, agreement, trust, fund, policy benefit plan or arrangement for the benefit of covering any current or former director, officer or employee; provided, however, that employee of the Company or Merger Sub; (d) not (i) the Company shall not take create or incur any of the foregoing actions with respect to any officer or director who has entered into an employment agreement indebtedness (“Employment Agreement”) with the Company attached as an exhibit to the Company’s most recent annual report on Form 10-K included or, even if in the Company SEC Reports and ordinary course of business, not in excess of $50,000 in the aggregate), or (ii) with respect release or create any Liens of any nature whatsoever except for Permitted Liens; (e) not make or commit to all make any capital expenditure, or enter into any lease of capital equipment as lessee or lessor; (f) pay, prepay or discharge any liability other employees, the Company shall be permitted to increase salaries in an aggregate amount not to exceed $1.55 million on an annual basis. Notwithstanding any provision of this Agreement to the contrary, the Company shall (i) establish an irrevocable rabbi trust as described in Section 4.1(f) of the Company Schedule and (ii) amend each Employment Agreement to provide that the bonus paid in 2006 in respect of the 2005 fiscal year will be used for purposes of calculating Severance Amounts (as defined than in the Employment Agreement)ordinary course of business or fail to pay any liability when due; (g) the Company shall not, and shall not permit write-off or write-down any of its subsidiaries to, make any capital expenditures in any fiscal quarter exceeding its capital expenditure budget (a copy of which is attached as Section 4.1(g) assets of the Company Schedule) for such fiscal quarter except as contemplated by more than $5,000,000this Agreement; (h) not amend the Articles of Incorporation, Bylaws or other governing instruments of the Company shall notor Merger Sub, except as contemplated by this Agreement; (i) not make any changes in its accounting methods or practices or revalue its Assets, except for (i) those changes required by GAAP, and shall (ii) changes in its tax accounting methods or practices that may be necessitated by changes in applicable Tax Laws; (j) not permit any of its subsidiaries to, purchaseissue, sell, transferpledge, assignencumber, farm-outauthorize the issuance of, mortgageenter into any Contract to issue, encumber sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of the Common Stock, or any stock appreciation rights, or any option, warrant, conversion, or other right to acquire any such stock, or any security convertible into any such stock, or pay or declare or agree to pay or declare any dividend or other distribution with respect to any Common Stock, except for shares to be issued pursuant to the Company Options outstanding under the any Company stock option plans; (k) not make any loan or otherwise arrange for the extension of credit to any Employee or increase the aggregate amount of any loan currently outstanding to any Employee; (l) not sell or otherwise dispose of any properties Material Asset or assets having a value in excess of $5,000,000 make any Material commitment relating to its Assets other than in the aggregateordinary course of business or enter into or terminate any lease of real property other than in the ordinary course of business except as contemplated by this Agreement; (m) not purchase or redeem, or agree to purchase or redeem, any security of the Company (including any share of Common Stock); (n) not waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock, reprice options granted under any employee, consultant, director, or other stock plans or authorize cash payments in exchange for any options granted under any of such plans; (o) not (i) the Company shall not, and shall not permit any of its subsidiaries to, enter into any hedging agreements whether or not new Material Contract, other than in the ordinary course of business consistent with past practice; practices, or (jii) except in the ordinary course of business consistent with past practiceMaterially modify, the Company shall not, and shall not permit any of its subsidiaries to, enter into, renew, extend, materially amend or terminate any Company Material Contract or Contract to which if entered into prior to the date hereof would be a Company Material Contract; (k) the Company shall not, and shall not permit any of its subsidiaries to, is a party or waive, release, assign, settle or compromise assign any claim, action Material rights or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the financial statements contained in the Company SEC Documents, or that involve only the payment of monetary damages not in excess of $5,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amountclaims thereunder, in each case, other than any such case in the ordinary course consistent with past practice; (l) the Company shall not, and shall not permit any of its subsidiaries to, take or omit a manner Materially adverse to take any action that would reasonably be expected to, individually or in the aggregate, result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of SPI except as contemplated by this Agreement; (mp) not take any actions that would make any representation and warranty of the Company shall not, and shall not permit or Merger Sub hereunder inaccurate in any of its subsidiaries to, enter into any “non-compete,” “non-solicit” or similar agreement that would materially restrict the businesses of the Surviving Company or its subsidiaries or their ability to solicit customers or employees following Material respect at the Effective Time; (n) the Company shall not, and shall not permit any of its subsidiaries to, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity; (o) the Company shall not, and shall not permit any of its subsidiaries to, change its methods of accounting (other than Tax accounting, which shall be governed by clause (p) below), except in accordance with changes in GAAP as concurred to by the Company’s independent auditors; (p) the Company shall not, and shall not permit any of its subsidiaries to, enter into any closing agreement with respect to material Taxes, settle or compromise any material liability for Taxes, make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax ruling;; or (q) the Company shall not, and shall not permit any of its subsidiaries to, enter into any newauthorize any, or amend commit or otherwise alter agree to take any Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to of, the date hereof; (r) the Company shall not, and shall not permit any of its subsidiaries to, make any loans to any individual (other than advances of out-of-pocket business expenses to employees, contractors or consultants in the ordinary course of business and consistent with past practices) or make any material loans, advances or capital contributions to, or investments in, any other person in excess of $500,000 in the aggregate for all such loans, advances, contributions and investments, except for transactions solely among the Company and/or wholly-owned subsidiaries of the Company; and (s) the Company shall not and shall not permit any of its subsidiaries (as applicable) to agree or formally commit to do any of the foregoingforegoing actions.

Conduct of the Company Business. The Except as set forth in Schedule 5.1 of the Company covenants and agrees thatDisclosure Schedule, between prior to the date of this Agreement and the Effective TimeClosing Date, except (i) with the prior written consent of ParentParent or as expressly contemplated by this Agreement, which the Company shall: (a) conduct its business in substantially the same manner as presently being conducted and refrain from entering into any transaction or Contract other than in the ordinary course of business and consistent with past practices; and not make any change in its methods of management, marketing, accounting (except as required by GAAP), or operations; (b) obtain approval from Parent prior to undertaking any Material new business opportunity outside the ordinary course of business; (c) confer at the request of Parent with one or more designated representatives of Parent to report Material operational matters and to report the general status of ongoing business operations; (d) notify Parent of any governmental complaints, investigations or hearings (or communications indicating that the same may not be unreasonably withheldcontemplated), delayed adjudicatory proceedings or conditioned, submissions involving any Material property or other Material Assets; (iie) except as contemplated by this Agreement or by otherwise disclosed in the schedules hereto Company Disclosure Schedule, not (i) grant any severance or termination pay to any current or former director, officer or employee of the Company, (ii) enter into any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any current or former director, officer or employee of the Company except as contemplated herein, (iii) for transactions between increase benefits payable under any existing severance or among the Company and its subsidiaries: termination pay policies or employment agreements, (aiv) the respective businesses increase compensation, bonus or other benefits payable or otherwise made available to current or former directors, officers or employees of the Company and the Company Material Subsidiaries shall be conducted in the ordinary course and in a manner consistent with past practice, in each case in all material respects; (b) except to the extent required to comply with applicable law and other than bylaw amendments that are not detrimental to the interests of the Company’s stockholders, the Company shall not amend or otherwise change its certificate of incorporation or bylaws; (c) the Company shall not, and shall not permit any of the Company Material Subsidiaries to, issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of any class of the Company or any Company Material Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, of the Company or any Company Material Subsidiary (except in accordance with the terms of securities outstanding on the date hereof or any existing employee ownership or benefit plan and in accordance with the Company Rights Plan); (d) the Company shall not (A) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for regular quarterly dividends by the Company in the ordinary course of business not in excess salary increases for employees other than officers and directors), (v) declare or pay any bonuses or year-end payments to any current or former directors, officers or employees of the amount paid for the most recent quarter) Company, or (Bvi) reclassifyestablish, combine, split or subdivideadopt, or redeem, purchase or otherwise acquire, directly or indirectlyamend (except as required by applicable Law), any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer or employee of its capital stockthe Company; (ef) the Company shall not, and shall not permit its subsidiaries to, (i) acquire (including, without limitation, by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or any division thereof or any amount of assets in excess of $5,000,000 in the aggregate; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person (other than the Company or any of its subsidiaries), or make any loans or advances, except in the ordinary course of business and consistent with past practice and practices, not (i) create or incur any indebtedness and, even if in the ordinary course of business, then not in excess of $1,000,000 50,000 in the aggregate; , or (iiiii) enter into release or amend create any contract, agreement, commitment or arrangement with respect to Liens of any matter set forth in this paragraph (e)nature whatsoever except for Permitted Liens; (fg) except in the Company shall notordinary course of business and, and shall even if in the ordinary course of business, then not permit its subsidiaries toin an amount to exceed $25,000 individually or $50,000 in the aggregate, increase materially the compensation payable not make or commit to become payable to, or grant make any severance or termination pay to, its officers or employees, except pursuant to existing contractual arrangementscapital expenditure, or enter into any employment lease of capital equipment as lessee or severance agreement with, any director, officer or other employee of the Company or any of its subsidiaries, or except as required by law establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that (i) the Company shall not take any of the foregoing actions with respect to any officer or director who has entered into an employment agreement (“Employment Agreement”) with the Company attached as an exhibit to the Company’s most recent annual report on Form 10-K included in the Company SEC Reports and (ii) with respect to all other employees, the Company shall be permitted to increase salaries in an aggregate amount not to exceed $1.55 million on an annual basis. Notwithstanding any provision of this Agreement to the contrary, the Company shall (i) establish an irrevocable rabbi trust as described in Section 4.1(f) of the Company Schedule and (ii) amend each Employment Agreement to provide that the bonus paid in 2006 in respect of the 2005 fiscal year will be used for purposes of calculating Severance Amounts (as defined in the Employment Agreement); (g) the Company shall not, and shall not permit any of its subsidiaries to, make any capital expenditures in any fiscal quarter exceeding its capital expenditure budget (a copy of which is attached as Section 4.1(g) of the Company Schedule) for such fiscal quarter by more than $5,000,000lessor; (h) except as contemplated by this Agreement, pay, prepay or discharge any liability other than in the Company shall notordinary course of business or fail to pay any liability when due; (i) write-off or write-down any Assets of the Company; (j) not amend the Certificate of Incorporation, Bylaws or other governing instruments of the Company, except as contemplated by this Agreement; (k) not make any changes in its accounting methods or practices or revalue its Assets, except for (i) those changes required by GAAP, and shall (ii) changes in its tax accounting methods or practices that may be necessitated by changes in applicable Tax Laws; (l) not permit any of its subsidiaries to, purchaseissue, sell, transferpledge, assignencumber, farm-outauthorize the issuance of, mortgageenter into any Contract to issue, encumber sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of the Company Stock, or any stock appreciation rights, or any option, warrant, conversion, or other right to acquire any such stock, or any security convertible into any such stock, or pay or declare or agree to pay or declare any dividend or other distribution with respect to any the Company Stock, except for shares to be issued pursuant to the Company Options outstanding under the Option Plan; (m) not make any loan or otherwise arrange for the extension of credit to any Employee or increase the aggregate amount of any loan currently outstanding to any Employee; (n) not sell or otherwise dispose of any properties Material Asset or assets having a value in excess of $5,000,000 make any Material commitment relating to its Assets other than in the aggregateordinary course of business or enter into or terminate any lease of real property other than in the ordinary course of business; (io) not purchase or redeem, or agree to purchase or redeem, any security of the Company shall not(including any share of Company Stock); (p) not waive any stock repurchase rights, and shall not permit accelerate, amend or change the period of exercisability of options or restricted stock, except for acceleration of Company Options pursuant to any outstanding agreements under the Option Plan or as otherwise contemplated herein, reprice options granted under any employee, consultant, director, or other stock plans or authorize cash payments in exchange for any options granted under any of its subsidiaries tosuch plans; (q) not transfer or license to any Person or otherwise extend, enter into amend or modify any hedging agreements whether or not rights to the Intellectual Property of the Company, other than in the ordinary course of business consistent with past practice; (jr) except not (i) enter into any new Material Contract, other than in the ordinary course of business consistent with past practicepractices, the Company shall notor (ii) except as contemplated by this Agreement, and shall not permit any of its subsidiaries toMaterially modify, enter into, renew, extend, materially amend or terminate any Company Material Contract or Contract to which if entered into prior to the date hereof would be a Company Material Contract; (k) the Company shall not, and shall not permit any of its subsidiaries to, is a party or waive, release, assign, settle or compromise assign any claim, action Material rights or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the financial statements contained in the Company SEC Documents, or that involve only the payment of monetary damages not in excess of $5,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amountclaims thereunder, in each case, other than any such case in the ordinary course consistent with past practicea manner Materially adverse to Parent; (l) the Company shall not, and shall not permit any of its subsidiaries to, take or omit to take any action that would reasonably be expected to, individually or in the aggregate, result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; (m) the Company shall not, and shall not permit any of its subsidiaries to, enter into any “non-compete,” “non-solicit” or similar agreement that would materially restrict the businesses of the Surviving Company or its subsidiaries or their ability to solicit customers or employees following the Effective Time; (n) the Company shall not, and shall not permit any of its subsidiaries to, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity; (o) the Company shall not, and shall not permit any of its subsidiaries to, change its methods of accounting (other than Tax accounting, which shall be governed by clause (p) below), except in accordance with changes in GAAP as concurred to by the Company’s independent auditors; (p) the Company shall not, and shall not permit any of its subsidiaries to, enter into any closing agreement with respect to material Taxes, settle or compromise any material liability for Taxes, make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax ruling; (q) the Company shall not, and shall not permit any of its subsidiaries to, enter into any new, or amend or otherwise alter any Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to the date hereof; (r) the Company shall not, and shall not permit any of its subsidiaries to, make any loans to any individual (other than advances of out-of-pocket business expenses to employees, contractors or consultants in the ordinary course of business and consistent with past practices) or make any material loans, advances or capital contributions to, or investments in, any other person in excess of $500,000 in the aggregate for all such loans, advances, contributions and investments, except for transactions solely among the Company and/or wholly-owned subsidiaries of the Company; and (s) not take any actions that could reasonably be expected to result in a Material Adverse Effect on the Company shall not and shall not permit Company; or (t) authorize any of its subsidiaries (as applicable) of, or commit or agree to agree or formally commit to do take any of of, the foregoingforegoing actions.

Conduct of the Company Business. The Except as set forth in Section 5.1 of the Company covenants and agrees thatDisclosure Schedule, between prior to the date of this Agreement and the Effective TimeClosing Date, except (i) with the prior written consent of Parent, which may not be unreasonably withheld, delayed Parent or conditioned, (ii) as expressly contemplated by this Agreement or by the schedules hereto or (iii) for transactions between or among Agreement, the Company and its subsidiariesshall: (a) conduct its business in substantially the respective businesses of the Company same manner as presently being conducted and the Company Material Subsidiaries shall be conducted in the ordinary course and in a manner consistent with past practice, in each case in all material respects; (b) except to the extent required to comply with applicable law and refrain from entering into any transaction or Contract other than bylaw amendments that are not detrimental to the interests of the Company’s stockholders, the Company shall not amend or otherwise change its certificate of incorporation or bylaws; (c) the Company shall not, and shall not permit any of the Company Material Subsidiaries to, issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock of any class of the Company or any Company Material Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock, of the Company or any Company Material Subsidiary (except in accordance with the terms of securities outstanding on the date hereof or any existing employee ownership or benefit plan and in accordance with the Company Rights Plan); (d) the Company shall not (A) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for regular quarterly dividends by the Company in the ordinary course of business and consistent with past practices; and, accept for accounting adjustments mutually agreed upon by the parties, not make any change in excess its methods of the amount paid for the most recent quarter) or management, marketing, accounting (B) reclassify, combine, split or subdivideexcept as required by GAAP), or redeemoperations other than in the ordinary course of business and consistent with past practices; (b) obtain approval from Parent prior to undertaking any Material new business opportunity outside the ordinary course of business; (c) confer at the request of Parent with one or more designated representatives of Parent to report Material operational matters and to report the general status of ongoing business operations; (d) notify Parent of any governmental complaints, purchase investigations or otherwise acquirehearings (or communications indicating that the same may be contemplated), directly adjudicatory proceedings or indirectly, submissions involving any of its capital stockMaterial property or other Material Assets; (e) the Company shall not, and shall not permit its subsidiaries to, (i) acquire (includinggrant of any severance or termination pay to any current or former director, without limitationofficer or employee of the Company, by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or any division thereof or any amount of assets in excess of $5,000,000 in the aggregate; (ii) incur enter into any indebtedness for borrowed money employment, deferred compensation or issue other similar agreement (or any debt securities amendment to any such existing agreement) with any current or assumeformer director, guarantee officer or endorseemployee of the Company except as contemplated herein, (iii) increase in benefits payable under any existing severance or termination pay policies or employment agreements, (iv) increase in compensation, bonus or other benefits payable or otherwise as an accommodation become responsible formade available to current or former directors, officers or employees of the obligations of any person Company (other than in the Company or any ordinary course of its subsidiariesbusiness salary increases for employees other than officers and directors), (v) declare or make pay of any loans bonuses or advancesyear-end payments to any current or former directors, officers or employees of the Company, or (vi) establish, adopt, or amend (except as required by applicable Law), any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement covering any current or former director, officer or employee of the Company; (f) except in the ordinary course of business and consistent with past practice and practices, not (i) create or incur any indebtedness (or, even if in the ordinary course of business, not in excess of $1,000,000 50,000 in the aggregate; ), or (iiiii) enter into release or amend create any contract, agreement, commitment or arrangement with respect to Liens of any matter set forth in this paragraph (e)nature whatsoever except for Permitted Liens; (fg) except in the Company shall notordinary course of business and, and shall even if in the ordinary course of business, then not permit its subsidiaries toin an amount to exceed $50,000 individually or $250,000 in the aggregate, increase materially the compensation payable not make or commit to become payable to, or grant make any severance or termination pay to, its officers or employees, except pursuant to existing contractual arrangementscapital expenditure, or enter into any employment lease of capital equipment as lessee or severance agreement with, any director, officer or other employee of the Company or any of its subsidiaries, or except as required by law establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that (i) the Company shall not take any of the foregoing actions with respect to any officer or director who has entered into an employment agreement (“Employment Agreement”) with the Company attached as an exhibit to the Company’s most recent annual report on Form 10-K included in the Company SEC Reports and (ii) with respect to all other employees, the Company shall be permitted to increase salaries in an aggregate amount not to exceed $1.55 million on an annual basis. Notwithstanding any provision of this Agreement to the contrary, the Company shall (i) establish an irrevocable rabbi trust as described in Section 4.1(f) of the Company Schedule and (ii) amend each Employment Agreement to provide that the bonus paid in 2006 in respect of the 2005 fiscal year will be used for purposes of calculating Severance Amounts (as defined in the Employment Agreement); (g) the Company shall not, and shall not permit any of its subsidiaries to, make any capital expenditures in any fiscal quarter exceeding its capital expenditure budget (a copy of which is attached as Section 4.1(g) of the Company Schedule) for such fiscal quarter by more than $5,000,000lessor; (h) pay or discharge liabilities, when due, in the Company shall notordinary course of business and consistent with past practices, subject to good faith disputes with respect thereto; (i) write-off or write-down any assets of the Company; (j) not amend the Articles of Incorporation, Bylaws or other governing instruments of the Company, except as contemplated by this Agreement; (k) not make any changes in its accounting methods or practices or revalue its Assets, except for (i) those changes required by GAAP, and shall (ii) changes in its tax accounting methods or practices that may be necessitated by changes in applicable Tax Laws; (l) not permit any of its subsidiaries to, purchaseissue, sell, transferpledge, assignencumber, farm-outauthorize the issuance of, mortgageenter into any Contract to issue, encumber sell, pledge, encumber, or authorize the issuance of, or otherwise permit to become outstanding, any additional shares of the Company Stock, or any stock appreciation rights, or any option, warrant, conversion, or other right to acquire any such stock, or any security convertible into any such stock, or pay or declare or agree to pay or declare any dividend or other distribution with respect to any the Company Stock; (m) not make any loan or otherwise arrange for the extension of credit to any Employee or increase the aggregate amount of any loan currently outstanding to any Employee; (n) not sell or otherwise dispose of any properties Material Asset or assets having a value in excess of $5,000,000 make any Material commitment relating to its Assets other than in the aggregateordinary course of business or enter into or terminate any lease of real property other than in the ordinary course of business; (io) not purchase or redeem, or agree to purchase or redeem, any security of the Company shall not(including any share of Company Stock); (p) not transfer or license to any Person or otherwise extend, and shall not permit amend or modify any rights to the Intellectual Property of its subsidiaries tothe Company, enter into any hedging agreements whether or not other than in the ordinary course of business consistent with past practice; (jq) except not (i) enter into any new Material Contract, other than in the ordinary course of business consistent with past practicepractices, the Company shall notor (ii) Materially modify, and shall not permit any of its subsidiaries to, enter into, renew, extend, materially amend or terminate any Company Material Contract or Contract to which if entered into prior to the date hereof would be a Company Material Contract; (k) the Company shall not, and shall not permit any of its subsidiaries to, is a party or waive, release, assign, settle or compromise assign any claim, action Material rights or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the financial statements contained in the Company SEC Documents, or that involve only the payment of monetary damages not in excess of $5,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amountclaims thereunder, in each case, other than any such case in the ordinary course consistent with past practice; (l) the Company shall not, and shall not permit any of its subsidiaries to, take or omit a manner Materially adverse to take any action that would reasonably be expected to, individually or in the aggregate, result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; (m) the Company shall not, and shall not permit any of its subsidiaries to, enter into any “non-compete,” “non-solicit” or similar agreement that would materially restrict the businesses of the Surviving Company or its subsidiaries or their ability to solicit customers or employees following the Effective Time; (n) the Company shall not, and shall not permit any of its subsidiaries to, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of such entity; (o) the Company shall not, and shall not permit any of its subsidiaries to, change its methods of accounting (other than Tax accounting, which shall be governed by clause (p) below), except in accordance with changes in GAAP as concurred to by the Company’s independent auditors; (p) the Company shall not, and shall not permit any of its subsidiaries to, enter into any closing agreement with respect to material Taxes, settle or compromise any material liability for Taxes, make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax ruling; (q) the Company shall not, and shall not permit any of its subsidiaries to, enter into any new, or amend or otherwise alter any Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to the date hereofParent; (r) the Company shall not, and shall not permit take any of its subsidiaries to, make any loans actions that could reasonably be expected to any individual (other than advances of out-of-pocket business expenses to employees, contractors or consultants result in the ordinary course of business and consistent with past practices) or make any material loans, advances or capital contributions to, or investments in, any other person in excess of $500,000 in the aggregate for all such loans, advances, contributions and investments, except for transactions solely among the Company and/or wholly-owned subsidiaries of a Material Adverse Effect on the Company; andor (s) authorize any, or commit or agree to take any of, the Company shall not and shall not permit any of its subsidiaries (as applicable) to agree or formally commit to do any of the foregoingforegoing actions.

Conduct of the Company Business. The Company covenants and agrees that, between the date of Except as contemplated by this Agreement and in connection with the Effective TimeTransactions, except (i) with the prior written consent of Parent, Buyer (which may consent shall not be unreasonably withheldwithheld or delayed) and except as set forth on Schedule 4.2, delayed or conditioned, (ii) as contemplated by this Agreement or by the schedules hereto or (iii) for transactions between or among the Company and its subsidiariesagrees, during the period from the date hereof until the Closing Date, that: (a) the respective businesses of the Company and the Company Material Subsidiaries Entities shall be conducted in the ordinary and usual course and in a manner consistent with past practicepractice and each Company Entity shall use reasonable efforts to preserve its business organization intact and maintain its existing relations with material customers, in each case in employees, creditors and business partners, and with all persons or entities with which the Company has entered into franchise agreements, airport concession agreements and material respectsleases; (b) except to the extent required to comply with applicable law and other than bylaw amendments that are not detrimental to the interests of the Company’s stockholders, the Company shall not amend or otherwise change its certificate of incorporation or bylaws; (c) the Company shall not, directly or indirectly, split, combine or reclassify the outstanding Common Stock or Preferred Stock; (c) no Company Entity shall: (i) amend its certificate of incorporation or by-laws or similar organizational documents; (ii) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock other than dividends declared and shall not permit any of paid by the Company's Subsidiaries to the Company Material Subsidiaries to, or its Subsidiaries; (iii) issue, sell, transfer, pledge, dispose of or encumber any additional shares of, grant, encumberor securities convertible into or exchangeable for, or authorize the issuanceoptions, salewarrants, pledgecalls, disposition, grant commitments or encumbrance ofrights of any kind to acquire, any shares of capital stock of any class of the Company or its Subsidiaries; (iv) transfer, lease, license, sell, mortgage, pledge, dispose of or encumber any Company Material Subsidiary, or any options, warrants, convertible securities or other rights of any kind assets that are material to acquire any shares of such capital stock, of the Company or any Company Material Subsidiary (except in accordance with the terms of securities outstanding on the date hereof or any existing employee ownership or benefit plan and in accordance with the Company Rights Plan); (d) the Company shall not Entities taken as a whole, other than (A) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except for regular quarterly dividends by the Company in the ordinary course of business not in excess of the amount paid for the most recent quarter) or consistent with past practice, (B) reclassifypursuant to agreements in effect on the date hereof, combine(C) when such assets become worn out, split unserviceable or subdivide, no longer useful to the businesses of the Company Entities taken as a whole or (D) pursuant to Permitted Liens; or (v) redeem, purchase or otherwise acquire, acquire directly or indirectly, indirectly any of its capital stock, other than shares of Series X Preferred Stock in accordance with the terms thereof; (d) no Company Entity shall: (i) grant any increase in the compensation payable or to become payable by any Company Entity to any executive officer other than scheduled annual increases in the ordinary course of business consistent with past practice; or (ii) except to the extent currently required under applicable law or the terms of the applicable agreement or arrangement, adopt or enter into any new (or amend or otherwise increase, or accelerate the payment or vesting of the amounts payable or to become payable under any existing) bonus, incentive compensation, deferred compensation, severance, profit sharing, stock option, stock purchase, insurance, pension, retirement or other employee benefit plan, agreement or arrangement, other than the Special Bonus Program (as defined in Section 4.7); (e) the no Company shall not, and shall not permit its subsidiaries to, Entity shall: (i) acquire (including, without limitation, by merger, consolidation incur or acquisition of stock or assets) assume any corporation, partnership or other business organization or any division thereof or any amount of assets in excess of $5,000,000 debt except for borrowings under existing credit facilities in the aggregateordinary course of business consistent with past practice; (ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorseguarantee, endorse or otherwise as an accommodation become liable or responsible for(whether directly, contingently or otherwise) for the obligations of any person (other than the Company or any of its subsidiaries), or make any loans or advancesperson, except in the ordinary course of business and consistent with past practice and not in excess of $1,000,000 in the aggregatepractice; or (iii) enter into make any loans, advances or amend any contract, agreement, commitment or arrangement with respect to any matter set forth in this paragraph (e); (f) the Company shall not, and shall not permit its subsidiaries to, increase materially the compensation payable or to become payable capital contributions to, or grant any severance or termination pay to, its officers or employees, except pursuant to existing contractual arrangements, or enter into any employment or severance agreement withinvestments in, any directorother person, officer or other employee than to wholly owned Subsidiaries of the Company or any of its subsidiaries, or except as required by law establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that (i) the Company shall not take any of the foregoing actions with respect to any officer or director who has entered into an employment agreement (“Employment Agreement”) with the Company attached as an exhibit to the Company’s most recent annual report on Form 10-K included in the Company SEC Reports and ordinary course of business consistent with past practice; or (iiiv) with respect to all other employees, the Company shall be permitted to increase salaries in an aggregate amount not to exceed $1.55 million on an annual basis. Notwithstanding any provision of this Agreement to the contrary, the Company shall (i) establish an irrevocable rabbi trust as described in Section 4.1(f) of the Company Schedule and (ii) amend each Employment Agreement to provide that the bonus paid in 2006 in respect of the 2005 fiscal year will be used for purposes of calculating Severance Amounts (as defined in the Employment Agreement); (g) the Company shall not, and shall not permit any of its subsidiaries to, make any capital expenditures in any fiscal quarter exceeding its material capital expenditure budget (a copy of which is attached as Section 4.1(g) of the Company Schedule) for such fiscal quarter by more other than $5,000,000; (h) the Company shall not, and shall not permit any of its subsidiaries to, purchase, sell, transfer, assign, farm-out, mortgage, encumber or otherwise dispose of any properties or assets having a value in excess of $5,000,000 in the aggregate; (i) the Company shall not, and shall not permit any of its subsidiaries to, enter into any hedging agreements whether or not in the ordinary course of business consistent with past practice; (jf) except no Company Entity shall enter into any agreement, contract, commitment or arrangement which would be a Material Company Agreement, other than in the ordinary course of business consistent with past practice, the Company shall not, and shall not permit or amend any of its subsidiaries to, enter into, renew, extend, materially amend existing loan agreement or terminate any Company Material Contract or Contract which if entered into prior to the date hereof would be a Company Material Contractcredit facility; (kg) the no Company Entity shall not, and shall not permit any of its subsidiaries to, waive, release, assign, settle or compromise any claim, action or proceeding, other than waivers, releases, assignments, settlements or compromises not exceeding the amount reserved against in the financial statements contained in the Company SEC Documents, or that involve only the payment of monetary damages not in excess of $5,000,000 in the aggregate (excluding amounts to be paid under existing insurance policies) or otherwise pay, discharge or satisfy any claims, liabilities or obligations in excess of such amount, in each case, other than in the ordinary course consistent with past practice; (l) the Company shall not, and shall not permit any of its subsidiaries to, take or omit to take any action that would reasonably be expected to, individually or in the aggregate, result in any of the conditions to the Merger set forth in Article VI not being satisfied or satisfaction of those conditions being materially delayed in violation of any provision of this Agreement; (m) the Company shall not, and shall not permit any of its subsidiaries to, enter into any “non-compete,” “non-solicit” or similar agreement that would materially restrict the businesses of the Surviving Company or its subsidiaries or their ability to solicit customers or employees following the Effective Time; (n) the Company shall not, and shall not permit any of its subsidiaries to, adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other material reorganization of such entitythe Company or any of its Subsidiaries; (oh) the no Company Entity shall notpay, discharge or satisfy any claim, liability or obligation (including contingent claims, liabilities and shall not permit any of its subsidiaries toobligations), change its methods of accounting (other than Tax accounting, which shall be governed by clause (p) below), except in accordance with changes in GAAP as concurred to by the Company’s independent auditors; (p) the Company shall not, and shall not permit any of its subsidiaries to, enter into any closing agreement with respect to material Taxes, settle or compromise any material liability for Taxes, make, revoke or change any material Tax election, agree to any adjustment of any material Tax attribute, file or surrender any claim for a material refund of Taxes, execute or consent to any waivers extending the statutory period of limitations with respect to the collection or assessment of material Taxes, file any material amended Tax Return or obtain any material Tax ruling; (q) the Company shall not, and shall not permit any of its subsidiaries to, enter into any new, or amend or otherwise alter any Affiliate Transaction or transaction which would be an Affiliate Transaction if such transaction occurred prior to the date hereof; (r) the Company shall not, and shall not permit any of its subsidiaries to, make any loans to any individual (other than advances of out-of-pocket business expenses to employees, contractors or consultants in the ordinary course of business and consistent with past practices) practice or make as required by applicable law or regulation or by any material loans, advances or capital contributions to, or investments in, any other person in excess of $500,000 in the aggregate for all such loans, advances, contributions and investments, except for transactions solely among the Company and/or wholly-owned subsidiaries of the CompanyGovernmental Entity; and (si) the no Company Entity shall not and shall not permit any of its subsidiaries (as applicable) to agree enter into an agreement, contract, commitment or formally commit arrangement to do any of the foregoing, or authorize any of the foregoing.