Common use of Conduct Pending Closing Clause in Contracts

Conduct Pending Closing. (a) During the Pre-Closing Period: (i) Seller shall conduct its businesses and operations in compliance in all material respects with all applicable Law (including the WARN Act) and with the requirements of all Specified Contracts; (ii) Seller shall provide full cooperation and shall take whatever actions necessary to effect the transfer as of the Closing Date of all of Seller's Documentation and Foreign Documentation to Acquisition Sub; (iii) Seller shall keep in full force, or renew at appropriate levels of coverage upon expiration, applicable insurance policies; (iv) Seller will close all outstanding Product complaints received prior to the Closing Date, provided that if such complaints require return of the Product and such Product has not been returned at least ten (10) Business Days prior to the Closing Date, Seller shall have no obligation to close such complaints; and (v) Seller shall promptly notify Parent and Acquisition Sub of any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the transactions contemplated by this Agreement. (b) During the Pre-Closing Period, Seller shall not (without the prior written consent of Parent): (i) (A) declare, accrue, set aside or pay any dividend on, or make any other distribution (whether in cash, securities or other property) in respect of, any of its outstanding capital stock , (B) split, combine or reclassify any of its outstanding capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests (other than the issuance of Seller Common Stock pursuant to the valid exercise of options to acquire Seller Common Stock outstanding as of the date of this Agreement), or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transaction; (iii) form any subsidiary or directly or indirectly acquire any equity or other interest in, or make any other investment in or capital contribution to, any other entity; (iv) except for capital expenditures relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insurance, make any single capital expenditure in excess of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000; (v) except as otherwise permitted by this Section 5.02, enter into or become bound by, or permit any of the Purchased Assets to become bound by, any material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any material Contract, in each case other than in the ordinary course of business and consistent with past practices; (vi) acquire, lease or license any right or other asset from any other Person or sell or otherwise dispose of, or lease or license, any right or other asset, including without limitation, any Purchased Intellectual Property to any other Person, except in each case for assets acquired, leased, licensed or disposed of by Seller in the ordinary course of business and consistent with past practices; (vii) dispose of or permit to lapse any material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practices; (viii) lend money to any Person, or incur or guarantee any indebtedness, including any additional borrowings under any existing lines of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices); (ix) except as required to comply with applicable Law, establish, adopt or amend any Employee Benefit Plan, pay, commit to pay or accelerate the payment of any bonus or make, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount of the wages, salary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any of its directors, officers, employees or consultants; provided, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severance; (x) other than in the ordinary course of business consistent with past practice, change any of its warranty policies in any material respect; (xi) make or rescind any material Tax election or settle or compromise any material Tax Liability of Seller; (xii) (A) commence or settle any material Proceeding, or (B) except as set forth on Schedule 3.10, pay, discharge or satisfy any material Claims, Liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation or any Contract relating to an Acquisition Proposal; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated; (xv) take any action that could be reasonably expected to result in any of the conditions set forth in Section 6.01 not being satisfied; (xvi) except in connection with the liquidation and dissolution of Seller after the Closing Date, enter into any material transaction or take any other material action outside the ordinary course of business and inconsistent with past practices; (xvii) acquire, lease or enter into any Contract to acquire or lease any Real Property; (xviii) amend, modify, extend, or enter into any collective bargaining agreement or other Contract with any union or labor organization representing any employees of Seller; or (xix) agree or commit to take any of the actions described in clauses (i) through (xviii) of this Section 5.02(b). (c) Seller shall provide Parent with a copy of, and substantively and timely respond on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact that they arose after the date hereof, would be classified as an Intellectual Property Communication, unless the deadline for such response is more than thirty (30) calendar days after the Closing Date. Any substantive response to be made pursuant to this Section 5.02(c) shall be first delivered to Parent for its approval (which shall not be unreasonably withheld) before any such substantive response is sent to the PTO. If the approval of Parent is not received before such time as Seller would have to send such response in order for it to be timely, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of Parent. (d) Within two (2) Business Days from the date hereof, Seller will provide Parent with a current listing of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions required to be taken in order to maintain such Patents and Trademarks as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING").

Conduct Pending Closing. From and after the date hereof until the Closing or the earlier termination of this Agreement pursuant to Article VIII, except as otherwise consented to in writing by Parent and Acquisition Sub, the Company shall, and the Indemnifying Sellers shall cause the Company to: (a) During the Pre-Closing Period: (i) Seller shall conduct its businesses business substantially as presently conducted and operations only in compliance in all material respects the ordinary course consistent with all applicable Law (including the WARN Act) and with the requirements of all Specified Contractspast practice; (ii) Seller shall provide full cooperation and shall take whatever actions necessary to effect the transfer as of the Closing Date of all of Seller's Documentation and Foreign Documentation to Acquisition Sub; (iii) Seller shall keep in full force, or renew at appropriate levels of coverage upon expiration, applicable insurance policies; (iv) Seller will close all outstanding Product complaints received prior to the Closing Date, provided that if such complaints require return of the Product and such Product has not been returned at least ten (10) Business Days prior to the Closing Date, Seller shall have no obligation to close such complaints; and (v) Seller shall promptly notify Parent and Acquisition Sub of any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the transactions contemplated by this Agreement. (b) During the Pre-Closing Period, Seller shall not (without the prior written consent of Parent): (i) (A) declare, accrue, set aside or pay form any dividend on, or make any other distribution (whether in cash, securities or other property) in respect of, any of its outstanding capital stock , (B) split, combine or reclassify any of its outstanding capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests (other than the issuance of Seller Common Stock pursuant to the valid exercise of options to acquire Seller Common Stock outstanding as of the date of this Agreement), or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transactionSubsidiary; (iiic) form not sell, lease, license or otherwise dispose of any subsidiary or directly or indirectly acquire any equity material assets, except sales of inventories or other interest in, or make any other investment in or capital contribution to, any other entity; (iv) except for capital expenditures relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insurance, make any single capital expenditure in excess of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000; (v) except as otherwise permitted by this Section 5.02, enter into or become bound by, or permit any of the Purchased Assets to become bound by, any material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any material Contract, in each case other than assets in the ordinary course of business and consistent with past practicesbusiness; (vid) acquireuse commercially reasonable efforts to (i) maintain its business, lease or license any right or other asset from any other Person or sell or otherwise dispose ofassets, or lease or licenserelations with present employees, any right or other assetcustomers, including without limitationsuppliers, any Purchased Intellectual Property to any other Personpartners, except in each case for assets acquired, leased, licensed or disposed of by Seller in the ordinary course of licensees and operations as an ongoing business and consistent preserve its goodwill, in accordance with past practicescustom and practice; and (ii) to satisfy each of the closing conditions set forth in Article VII; (viie) dispose of not issue or permit sell any capital stock or issue or sell any securities convertible into, exercisable or exchangeable for or options or warrants to lapse any material purchase or rights to the use of subscribe for, any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practicescapital stock; (viiif) lend money to not declare or pay a distribution on any Personcapital stock, not change the number of authorized shares of its capital stock or reclassify, combine, split, subdivide or redeem or otherwise repurchase any of its capital stock, or incur issue, deliver, pledge or guarantee any indebtedness, including encumber any additional borrowings under capital stock or other securities equivalent to or exchangeable for capital stock or enter into any existing lines contract or arrangement to do any of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices)foregoing; (ixg) except as required to comply with applicable Law, establish, adopt not incur any Funded Indebtedness or amend issue any Employee Benefit Plan, pay, commit to pay or accelerate the payment of securities evidencing any bonus or make, commit to make or accelerate any profit-sharing or similar payment toFunded Indebtedness; (h) not enter into, or increase amend, alter, modify, supplement, restate or commit to increase the amount of the wages, salary, commissions, fringe benefits, severance, insurance waive any material terms or other compensation or remuneration payable toconditions of, any material contract, agreement or arrangement; (i) not enter into any employment or termination agreement or effect any increase in the rate or terms of its compensation payable or to become payable to directors, officers, employees employees, partners and Persons having business relations with the Company, or consultants; providedincrease the rate or terms of any bonus, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (pension or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to other Employee Plan covering any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severancePerson; (xj) not knowingly create or suffer to exist any Encumbrance on any of its assets or properties; (k) not change its accounting principles or policies; (l) not make any Tax election or compromise or settle any Tax Liability; (m) not delay or postpone the payment of accounts payable and other obligations and liabilities or accelerate the collection of accounts receivable, other than in the ordinary course of business consistent with past historical and customary practice, change ; (n) not amend any of its warranty policies in any material respectFundamental Documents; (xio) make not enter into any transaction other than in the ordinary course of business, or rescind any material Tax election or settle or compromise any material Tax Liability of Sellertransaction which is not at arms-length with unaffiliated third Persons; (xiip) (A) commence not take or settle any material Proceeding, or (B) except as set forth on Schedule 3.10, pay, discharge or satisfy any material Claims, Liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation or any Contract relating omit to an Acquisition Proposal; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated; (xv) take any action that could be reasonably expected to which would result in any of the conditions set forth representations and warranties contained in Section 6.01 not this Agreement and the Related Documents being satisfied; (xvi) except in connection with the liquidation and dissolution of Seller after untrue on the Closing Date, enter into any material transaction or take any other material than such action outside as shall have been previously agreed to in writing by the ordinary course of business and inconsistent with past practicesparties hereto; (xviiq) acquire, lease or enter into any Contract to acquire or lease any Real Propertymaintain in good standing all Permits held by it on a timely basis; (xviiir) amend, modify, extend, or enter into any collective bargaining agreement or other Contract with any union or labor organization representing any employees continue the historic and customary maintenance capital expenditure levels of Seller; orthe Company; (xixs) not make any capital expenditures for improvements or upgrades; and (t) not agree or otherwise commit to take any of the actions described in clauses (i) through (xviii) of this Section 5.02(b)set forth above. (c) Seller shall provide Parent with a copy of, and substantively and timely respond on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact that they arose after the date hereof, would be classified as an Intellectual Property Communication, unless the deadline for such response is more than thirty (30) calendar days after the Closing Date. Any substantive response to be made pursuant to this Section 5.02(c) shall be first delivered to Parent for its approval (which shall not be unreasonably withheld) before any such substantive response is sent to the PTO. If the approval of Parent is not received before such time as Seller would have to send such response in order for it to be timely, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of Parent. (d) Within two (2) Business Days from the date hereof, Seller will provide Parent with a current listing of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions required to be taken in order to maintain such Patents and Trademarks as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING").

Conduct Pending Closing. (a) During From the Pre-Closing Period: (i) Seller shall conduct its businesses and operations in compliance in all material respects with all applicable Law (including the WARN Act) and with the requirements date of all Specified Contracts; (ii) Seller shall provide full cooperation and shall take whatever actions necessary to effect the transfer as of the Closing Date of all of Seller's Documentation and Foreign Documentation to Acquisition Sub; (iii) Seller shall keep in full force, or renew at appropriate levels of coverage upon expiration, applicable insurance policies; (iv) Seller will close all outstanding Product complaints received prior this Agreement to the Closing Date, provided that if such complaints require return of the Product and such Product has not been returned except for actions: (i) taken with Buyers’ prior written consent or at least ten Buyers’ written request; (10ii) Business Days prior to the Closing Date, Seller shall have no obligation to close such complaints; and (v) Seller shall promptly notify Parent and Acquisition Sub of any notice or other communication from any Person alleging that the Consent of such Person is or may be expressly required in connection with any of the transactions contemplated by this Agreement. Agreement (b) During including, for the avoidance of doubt, the Pre-Closing PeriodTransactions); or (iii) described on Section 5.1(a) of the Sellers Disclosure Schedule, Seller shall (1) Sellers will, and will cause the Acquired Companies to, conduct their operations and affairs in the Ordinary Course of Business in all respects and to use commercially reasonable efforts to preserve intact the Business, the Acquired Companies and their personnel, customer and supplier relationships and goodwill and (2) Sellers will not, and will cause the Acquired Companies not (without the prior written consent of Parent):to: (i) (A) declare, accrue, set aside amend or pay propose to amend the Organizational Documents of any dividend on, Seller or make any other distribution (whether in cash, securities or other property) in respect of, any of its outstanding capital stock , Acquired Company; (B) split, combine or reclassify the Securities or any of its outstanding capital stock or other equity interests or issue securities of either Seller or authorize the issuance any Acquired Company; or (C) declare, set aside or pay any non-cash dividend or non-cash distribution to any Person; (ii) issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any additional equity of, or any options, warrants or rights of any kind to acquire any equity of, or any other securities of either Seller or the Acquired Companies; (iii) (A) except to the extent incurred under the Existing Credit Facility in respect ofthe Ordinary Course of Business, in lieu incur Indebtedness outstanding at any time or grant any Encumbrance other than Permitted Encumbrances; (B) make any acquisition of any assets or in substitution for shares of its outstanding capital stock or other equity interests businesses (other than inventory in the issuance Ordinary Course of Seller Common Stock pursuant Business); (C) sell, pledge, dispose of, encumber, abandon or allow to lapse any material assets or businesses (including, in any event, any Owned Acquired Company Intellectual Property) other than sales of inventory in the Ordinary Course of Business; or (D) make any investments in, or loans or advances to, any Person; (iv) (A) abandon, disclaim, cancel, forfeit, fail to maintain, dedicate to the valid exercise of options public, sell or assign, in whole or in part, any Registered Intellectual Property, including any failure to acquire Seller Common Stock outstanding as of perform or cause to be performed, timely and properly, all applicable filings, recordings and other acts, or to pay or cause to be paid all required fees, reasonably necessary to prosecute (in the date of this Agreementapplicable jurisdiction), maintain and protect its interest in any Registered Intellectual Property, (B) disclose any Trade Secrets except under appropriate non-disclosure or license agreements, or (C) purchasesettle, redeem offer to settle or otherwise acquire resolve any shares of outstanding capital stock pending or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transaction; (iii) form any subsidiary or directly or indirectly acquire any equity or other interest in, or make any other investment in or capital contribution to, any other entity; (iv) except for capital expenditures threatened Proceeding relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insuranceinfringement of, make or use without authorization of, any single capital expenditure Owned Acquired Company Intellectual Property except for the matters set forth in excess Section 2.13(i) of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000Sellers Disclosure Schedules; (v) except as otherwise permitted required by this any Employee Benefit Plan set forth in Section 5.022.17(a) of the Sellers Disclosure Schedule or applicable Law, enter into or become bound by(A) establish, renew, amend, or permit terminate any Employee Benefit Plan; (B) increase the compensation payable to any current or former employee, director or independent contractor of the Purchased Assets either Seller or any Acquired Company or modify any employment contract; (C) pay or award, or commit to become bound bypay or award, any material Contractbonuses, change in control payments or amend incentive compensation; (D) accelerate the vesting or terminate, payment timing of any compensation or waive benefits; (E) fund any rabbi trust or exercise similar arrangement; or (F) forgive any material right loan to any current or remedy under, any material Contract, in each case other than in former employee of either Seller or the ordinary course of business and consistent with past practicesAcquired Companies; (vi) acquire, lease or license make any right or other asset from any other Person or sell or otherwise dispose of, or lease or license, any right or other asset, including without limitation, any Purchased Intellectual Property change to any other Persontheir methods of financial accounting, except as required by a change in each case for assets acquired, leased, licensed GAAP (or disposed of by Seller any interpretation thereof) or in the ordinary course of business and consistent with past practicesapplicable Law; (vii) dispose of commit or permit authorize any commitment to lapse make any material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practicescapital expenditures; (viii) lend money to dissolve, merge or consolidate either Seller or any Acquired Company with any other Person, or incur or guarantee any indebtedness, including any additional borrowings under any existing lines of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices); (ix) if such action would reasonably be expected to, individually or in the aggregate with any other action(s) described in this clause (ix), have the effect of materially increasing the Tax liability of any of the Acquired Companies or materially decreasing any Tax attributes of any of the Acquired Companies, (A) make, change or revoke any Tax election (including, for the avoidance of doubt, any entity classification election pursuant to Treasury Regulations Section 301.7701-3); (B) change any annual accounting period; (C) except as required to comply with by applicable Law, establish, adopt or amend change any Employee Benefit Planmethod of accounting for Tax purposes; (D) file any amended income or other material Tax Return; (E) except as required by applicable Law, payprepare or file any Tax Return in a manner not consistent with past practice; (F) agree to an extension or waiver of the limitation period applicable to any claim, commit assessment, determination or collection of Taxes; (G) enter into any closing agreement (within the meaning of Section 7121 of the Code (or any similar provision of state, local or foreign Law)) or file any request for rulings with any Taxing Authority; (H) surrender any right to pay or accelerate the payment claim a refund of any bonus Tax; or make(I) settle, commit to make compromise or accelerate surrender any profit-sharing claim or similar payment to, or increase or commit to increase the amount assessment in respect of the wages, salary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any of its directors, officers, employees or consultants; provided, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severanceTax; (x) other than in the ordinary course of business consistent with past practicesubject to Section 5.14, change any of its warranty policies in any material respect; (xi) make or rescind any material Tax election or settle or compromise any material Tax Liability of Seller; (xii) (A) commence enter into, renew, amend, voluntarily terminate, surrender or settle cancel any material ProceedingMaterial Contract (other than by expiration in accordance with its terms, unless in the case of an IP-License, there is a renewal option); or (B) except as set forth on Schedule 3.10, pay, discharge or satisfy any material Claims, Liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation or any Contract relating to an Acquisition Proposal; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated; (xv) take any action that could be reasonably expected to result in any of the conditions set forth in Section 6.01 not being satisfied; (xvi) except in connection with the liquidation and dissolution of Seller after the Closing Date, enter into any material transaction or take any other material action outside the ordinary course of business and inconsistent with past practices; (xvii) acquire, lease or enter into any Contract to acquire or lease any Real Property; (xviii) amendthat, modify, extend, or enter into any collective bargaining agreement or other Contract with any union or labor organization representing any employees of Seller; or (xix) agree or commit to take any of the actions described if in clauses (i) through (xviii) of this Section 5.02(b). (c) Seller shall provide Parent with a copy of, and substantively and timely respond effect on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact that they arose after the date hereof, would be classified as an Intellectual Property Communicationa Material Contract; (xi) settle or compromise any material Proceeding, unless or enter into any consent decree or settlement agreement with any Governmental Body, against or affecting the deadline for such response is more than thirty Business or the Acquired Companies; (30xii) calendar days after make any payment in respect of the Estate Loan or in respect of any other Liability owed to any Camuto Owner; and (xiii) not agree or commit to do or take any action described in this Section 5.1(a). (b) Without limiting the generality of Section 5.1(a), from the date of this Agreement to the Closing Date, Sellers will, and will cause the Acquired Companies and their respective Affiliates and Representatives to, cease any and all discussions or negotiations with any Person other than Buyers and its designated Representatives with respect to, and to deal exclusively with Buyers and its designated Representatives regarding, any acquisition of, or investment in, any of the Acquired Companies, whether by way of merger, consolidation or other business combination with any other Person, purchase or exchange of the Securities or purchase of assets or otherwise (an “Alternative Transaction”). Any substantive response to be made pursuant to From the date of this Section 5.02(c) shall be first delivered to Parent for its approval (which shall not be unreasonably withheld) before any such substantive response is sent Agreement to the PTO. If the approval of Parent is not received before such time as Seller would have to send such response in order for it to be timelyClosing Date, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior written consent of ParentBuyers (in their sole discretion), Sellers will not, and will cause the Acquired Companies and their respective Affiliates and Representatives not to (directly or indirectly): (i) solicit, initiate, respond to or knowingly encourage any proposal or inquiry from, or otherwise engage in any negotiations, discussions or other communications with, any other Person in contemplation of or relating to any Alternative Transaction; (ii) provide or furnish information or documentation to any other Person with respect to the Acquired Companies or the Business or Assets in furtherance of any Alternative Transaction; or (iii) enter into any letter of intent, Contract or understanding with any other Person in respect of any Alternative Transaction. (dc) Within two (2) Business Days Notwithstanding the foregoing, nothing in this Section 5.1 or anywhere else in this Agreement shall prohibit or restrict Sellers or the Acquired Companies from marketing for sale, and negotiating and completing the date hereofsale of, Seller will provide Parent with a current listing any of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for Excluded Assets to any actions required to be taken in order to maintain such Patents and Trademarks as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING")third party.

Conduct Pending Closing. Prior to consummation of the Transactions contemplated hereby or the termination or expiration of this Agreement pursuant to its terms, unless Buyer shall otherwise consent in writing, which consent shall not be unreasonably withheld or delayed, and except for actions taken pursuant to Assumed Contracts, or which are required by law or arise from or are related to the anticipated transfer of the Assets or the general restructuring of the electric utility industry, or as otherwise contemplated by this Agreement or disclosed in Schedule 6.3 or another Schedule to this Agreement, Seller shall: (a) During Operate and maintain the Pre-Closing Period: (i) Seller shall conduct its businesses Assets only in the usual and operations in compliance in all material respects ordinary course, materially consistent with all applicable Law (including the WARN Act) and with the requirements of all Specified Contracts; (ii) Seller shall provide full cooperation and shall take whatever actions necessary to effect the transfer as of the Closing Date of all of Seller's Documentation and Foreign Documentation to Acquisition Sub; (iii) Seller shall keep in full force, or renew at appropriate levels of coverage upon expiration, applicable insurance policies; (iv) Seller will close all outstanding Product complaints received practices followed prior to the Closing Date, provided that if such complaints require return execution of the Product and such Product has not been returned at least ten (10) Business Days prior to the Closing Date, Seller shall have no obligation to close such complaints; and (v) Seller shall promptly notify Parent and Acquisition Sub of any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the transactions contemplated by this Agreement.; (b) During Except as required by their terms, not amend, terminate, renew, or renegotiate any existing material Assumed Contract or enter into any new Assumed Contract, except in the Pre-Closing Periodordinary course of business and consistent with practices of the recent past, Seller shall not or default (or take or omit to take any action that, with or without the prior written consent giving of Parent):notice or passage of time, would constitute a default) in any of its obligations under any such contracts; (c) Not: (i) (A) declaresell, accruelease, set aside transfer or pay any dividend ondispose of, or make any other distribution (whether in cashcontract for the sale, securities lease, transfer or other property) in respect disposition of, any assets or properties which would be included in the Assets, other than sales in the ordinary course of its outstanding capital stock business which would not individually, or in the aggregate, have a Material Adverse Effect upon the operations or value of the FOP Facilities; (Bii) splitincur, combine assume, guaranty, or reclassify otherwise become liable in respect of any indebtedness for money borrowed which would result in Buyer assuming such liability hereunder after the Closing; (iii) delay the payment and discharge of any liability which, upon Closing, would be an Assumed Liability, because of the Transactions contemplated hereby; or (iv) encumber or voluntarily subject to any lien any Asset (except for Permitted Encumbrances); (d) Maintain in force and effect the material property and liability insurance policies related to the FOP Facilities and the Assets; (e) Not take any action which would cause any of its outstanding capital stock or other equity interests or issue or authorize Seller's representations and warranties set forth in Article 3 to be materially false as of the issuance of any other securities in respect ofClosing; (f) Not make Capital Expenditures, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests (other than the issuance of Seller Common Stock those contemplated on Schedule 2.6(c)(i), which would, pursuant to the valid exercise provisions of options Section 2.6(c), result in an upward adjustment of the Purchase Price pursuant to acquire Seller Common Stock outstanding Section 2.6(c)(i) in excess of $250,000 in the aggregate, except for purchases under agreements in existence as of the date hereof that would constitute Assumed Liabilities as of this Agreementsuch date, Capital Expenditures set forth on Schedule 2.6(c)(i), or (C) purchase, redeem or Capital Expenditures otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transaction; (iii) form any subsidiary or directly or indirectly acquire any equity or other interest in, or make any other investment approved in or capital contribution to, any other entity; (iv) except for capital expenditures relating to the Redwood City Facility writing by Buyer; Provided that Seller reasonably believes will be reimbursed by insurance, make any single capital expenditure nothing in excess of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000; (v) except as otherwise permitted by this Section 5.02, enter into or become bound by, or permit any of the Purchased Assets shall (i) obligate Seller to become bound by, any material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any material Contract, in each case make expenditures other than in the ordinary course of business and consistent with practices of the recent past practices; or to otherwise suffer any economic detriment, (viii) acquirepreclude Seller from paying, lease or license any right or other asset from any other Person or sell prepaying or otherwise dispose ofsatisfying any liability which, or lease or license, any right or other asset, including without limitation, any Purchased Intellectual Property to any other Person, except in each case for assets acquired, leased, licensed or disposed if outstanding as of by Seller in the ordinary course of business and consistent with past practices; (vii) dispose of or permit to lapse any material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practices; (viii) lend money to any Person, or incur or guarantee any indebtedness, including any additional borrowings under any existing lines of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices); (ix) except as required to comply with applicable Law, establish, adopt or amend any Employee Benefit Plan, pay, commit to pay or accelerate the payment of any bonus or make, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount of the wages, salary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any of its directors, officers, employees or consultants; provided, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severance; (x) other than in the ordinary course of business consistent with past practice, change any of its warranty policies in any material respect; (xi) make or rescind any material Tax election or settle or compromise any material Tax Liability of Seller; (xii) (A) commence or settle any material Proceeding, or (B) except as set forth on Schedule 3.10, pay, discharge or satisfy any material Claims, Liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation or any Contract relating to an Acquisition Proposal; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated; (xv) take any action that could be reasonably expected to result in any of the conditions set forth in Section 6.01 not being satisfied; (xvi) except in connection with the liquidation and dissolution of Seller after the Closing Date, enter into any material transaction or take any other material action outside the ordinary course of business and inconsistent with past practices; (xvii) acquire, lease or enter into any Contract to acquire or lease any Real Property; (xviii) amend, modify, extend, or enter into any collective bargaining agreement or other Contract with any union or labor organization representing any employees of Seller; or (xix) agree or commit to take any of the actions described in clauses (i) through (xviii) of this Section 5.02(b). (c) Seller shall provide Parent with a copy of, and substantively and timely respond on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact that they arose after the date hereof, would be classified as an Intellectual Property CommunicationAssumed Liability or an Excluded Liability, unless (iii) preclude Seller from incurring any liabilities or obligations to any third party in connection with obtaining such party's consent to any transaction contemplated by this Agreement or the deadline for Related Agreement provided such response is more than thirty liabilities and obligations under this clause (30) calendar days after the Closing Date. Any substantive response to be made pursuant to this Section 5.02(ciii) shall be first delivered Excluded Liabilities pursuant to Parent for its approval Section 2.4(g) hereof if not approved in advance by Buyer (which approval shall not be unreasonably withheldwithheld or delayed), or (iv) before preclude Seller from instituting or completing any such substantive response is sent program designed to promote compliance or comply with Laws or other good business practices respecting the PTO. If the approval of Parent is not received before such time as Seller would have to send such response in order for it to be timely, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of ParentFOP Facilities. (d) Within two (2) Business Days from the date hereof, Seller will provide Parent with a current listing of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions required to be taken in order to maintain such Patents and Trademarks as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING").

Conduct Pending Closing. Prior to consummation of the transactions contemplated hereby or the termination or expiration of this Agreement pursuant to its terms, unless Buyer shall otherwise consent in writing, which consent shall not be unreasonably Page 36 - CENTRALIA PLANT PURCHASE AND SALE AGREEMENT withheld or delayed, and except for actions taken pursuant to Assumed Contracts, or which are required by Law or arise from or are related to the anticipated transfer of the Assets or as otherwise contemplated by this Agreement or disclosed in Schedule 6.3 or another Schedule to this Agreement, Sellers shall: (a) During Operate and maintain the Pre-Closing Period: Assets only in the usual and ordinary course, materially consistent with practices followed prior to the execution of this Agreement; (b) Except as required by their terms, not amend, terminate, renew, or renegotiate any existing material Assumed Contract or enter into any new Assumed Contract, except in the ordinary course of business and consistent with practices of the recent past, or default (or take or omit to take any action that, with or without the giving of notice or passage of time, would constitute a default) in any of its obligation under any such contracts; (c) Not (i) Seller shall conduct its businesses and sell, lease, transfer or dispose of, or make any contract for the sale, lease, transfer or disposition of, the LLC Interests or any assets or properties which would be included in the Assets, other than sales in the ordinary course of business which would not individually, or in the aggregate, have a Material Adverse Effect upon the operations in compliance in all material respects with all applicable Law (including or value of the WARN Act) and with Plant or the requirements of all Specified Contracts; LLC Interests; (ii) incur, assume, guaranty, or otherwise become liable in respect of any indebtedness for money borrowed which would result in the LLC or Buyer assuming such liability hereunder after the Closing; (iii) delay the payment and discharge of any liability which, upon Closing, would be an Assumed Liability, because of the transactions contemplated hereby; or (iv) encumber or voluntarily subject to any lien any Asset or LLC Interest (except for Permitted Encumbrances); or (v) sell, lease, transfer or dispose of, to any Seller shall provide full cooperation or any Affiliate of any Seller, any LLC Interest or any assets or properties which would be included in the Assets, or remove any such assets or property to or for the benefit of any Seller or any Affiliate of any Seller; (d) Maintain in force and shall take whatever actions necessary to effect the transfer material property and liability insurance policies related to the Assets; (e) Subject to Section 6.2, not take any action which would cause any of Sellers' representations and warranties set forth in Article 3 to be materially false as of the Closing Date Closing; (f) Not make Capital Expenditures, other than those contemplated on Schedule 2.6(f)(i), which would, pursuant to the provisions of all Section 2.6(f), result in an upward adjustment of Seller's Documentation and Foreign Documentation the Purchase Price pursuant to Acquisition Sub; Section 2.6(f)(i) in excess of $1,000,000 in the aggregate, except for purchases under agreements in existence as of the date hereof that would constitute Assumed Liabilities as of such date, Capital Expenditures set forth on Schedule 2.6(f)(i), or Capital Expenditures otherwise approved in writing by Buyer; Page 37 - CENTRALIA PLANT PURCHASE AND SALE AGREEMENT (g) Not (i) adopt any new plan or program for severance, continuation or termination pay for employees at the Plant, (ii) enter into any new collective bargaining agreement or any amendment to the existing collective bargaining agreement for employees at the Plant, (iii) Seller shall keep in full forceincrease benefits payable under any Benefit Plan, or renew at appropriate levels of coverage upon expiration, applicable insurance policies; (iv) Seller will close all outstanding Product complaints received prior increase compensation payable to employees at the Plant, (v) represent to any employee at the Plant that Buyer would assume or continue to maintain any Benefit Plan after the Closing Date, provided that if such complaints require return or (vi) hire out or transfer any employees to or from the Plant unless essential to maintain the business or operations of the Product and such Product has not been returned at least ten (10) Business Days prior to the Closing Date, Seller Plant. Provided that nothing in this Section shall have no obligation to close such complaints; and (v) Seller shall promptly notify Parent and Acquisition Sub of any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the transactions contemplated by this Agreement. (b) During the Pre-Closing Period, Seller shall not (without the prior written consent of Parent): (i) (A) declare, accrue, set aside or pay any dividend on, or obligate Sellers to make any other distribution (whether in cash, securities or other property) in respect of, any of its outstanding capital stock , (B) split, combine or reclassify any of its outstanding capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests (other than the issuance of Seller Common Stock pursuant to the valid exercise of options to acquire Seller Common Stock outstanding as of the date of this Agreement), or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transaction; (iii) form any subsidiary or directly or indirectly acquire any equity or other interest in, or make any other investment in or capital contribution to, any other entity; (iv) except for capital expenditures relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insurance, make any single capital expenditure in excess of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000; (v) except as otherwise permitted by this Section 5.02, enter into or become bound by, or permit any of the Purchased Assets to become bound by, any material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any material Contract, in each case other than in the ordinary course of business and consistent with practices of the recent past practices; or to otherwise suffer any economic detriment, (viii) acquirepreclude Sellers from paying, lease or license any right or other asset from any other Person or sell prepaying or otherwise dispose ofsatisfying any liability which, or lease or license, any right or other asset, including without limitation, any Purchased Intellectual Property to any other Person, except in each case for assets acquired, leased, licensed or disposed if outstanding as of by Seller in the ordinary course of business and consistent with past practices; (vii) dispose of or permit to lapse any material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practices; (viii) lend money to any Person, or incur or guarantee any indebtedness, including any additional borrowings under any existing lines of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices); (ix) except as required to comply with applicable Law, establish, adopt or amend any Employee Benefit Plan, pay, commit to pay or accelerate the payment of any bonus or make, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount of the wages, salary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any of its directors, officers, employees or consultants; provided, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severance; (x) other than in the ordinary course of business consistent with past practice, change any of its warranty policies in any material respect; (xi) make or rescind any material Tax election or settle or compromise any material Tax Liability of Seller; (xii) (A) commence or settle any material Proceeding, or (B) except as set forth on Schedule 3.10, pay, discharge or satisfy any material Claims, Liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation or any Contract relating to an Acquisition Proposal; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated; (xv) take any action that could be reasonably expected to result in any of the conditions set forth in Section 6.01 not being satisfied; (xvi) except in connection with the liquidation and dissolution of Seller after the Closing Date, enter into would be an Assumed Liability or an Excluded Liability, (iii) preclude Sellers from incurring any material liabilities or obligations to any third party in connection with obtaining such party's consent to any transaction contemplated by this Agreement, the Related Agreements or take any other material action outside the ordinary course of business agreement contemplated hereby, provided such liabilities and inconsistent with past practices; obligations under this clause (xvii) acquire, lease or enter into any Contract to acquire or lease any Real Property; (xviii) amend, modify, extend, or enter into any collective bargaining agreement or other Contract with any union or labor organization representing any employees of Seller; or (xix) agree or commit to take any of the actions described in clauses (i) through (xviii) of this Section 5.02(b). (c) Seller shall provide Parent with a copy of, and substantively and timely respond on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact that they arose after the date hereof, would be classified as an Intellectual Property Communication, unless the deadline for such response is more than thirty (30) calendar days after the Closing Date. Any substantive response to be made pursuant to this Section 5.02(ciii) shall be first delivered Excluded Liabilities pursuant to Parent for its approval Section 2.4(h) hereof if not approved in advance by Buyer (which approval shall not be unreasonably withheldwithheld or delayed), or (iv) before preclude Sellers from instituting or completing any such substantive response is sent program designed to promote compliance or comply with Laws or other good business practices respecting the PTO. If the approval of Parent is not received before such time as Seller would have to send such response in order for it to be timely, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of ParentPlant. (d) Within two (2) Business Days from the date hereof, Seller will provide Parent with a current listing of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions required to be taken in order to maintain such Patents and Trademarks as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING").

Conduct Pending Closing. From and after the date hereof until the earlier of the Closing or the termination of this Agreement pursuant to Article IX, each of the Sellers shall, and shall cause each Entity to (unless otherwise consented to in writing by the Purchasers): (a) During not sell, lease, license or otherwise dispose of any assets with a book value in excess of $50,000 in the Pre-Closing Period: (i) Seller shall conduct its businesses and operations in compliance in all material respects with all applicable Law (including the WARN Act) and with the requirements of all Specified Contractsaggregate; (iib) Seller shall provide full cooperation and shall take whatever actions necessary to effect the not issue, sell or in any way transfer as any Equity Interests of the Closing Date of all of Seller's Documentation and Foreign Documentation Entities or issue or sell any securities convertible into, exercisable or exchangeable for or options or warrants to Acquisition Subpurchase or rights to subscribe for, any such Equity Interests; (iiic) Seller shall keep in full forcenot change the number of authorized shares of the Equity Interests of the Entities or reclassify, combine, split, subdivide or redeem or otherwise repurchase any of such Equity Interests, or renew at appropriate levels issue, deliver, pledge or encumber any additional Equity Interests of coverage upon expirationthe Entities or other securities equivalent to, applicable insurance policiesor exchangeable for, Equity Interests of the Entities or enter into any Contract to do any of the foregoing; (ivd) not incur or issue any securities evidencing any Funded Indebtedness or enter into any operating leases (other than Funded Indebtedness of a Seller will close all outstanding Product complaints received for which no Entity (or its assets) is liable or obligated (whether contractually, by applicable Law, as a guarantor or through the incurrence or grant of any Encumbrances), Funded Indebtedness related to money advanced from Sellers or GK Finance to an Entity on a basis consistent with past practice and in the ordinary course of business, provided that the amounts so advanced are repaid prior to the Closing Date, provided that if such complaints require return Funded Indebtedness or operating leases outstanding on the date hereof and disclosed on any Schedules hereunder), or amend, modify or agree to a waiver of the Product terms of any Funded Indebtedness or operating leases (including, without limitation increasing any commitments to extend credit thereunder); (e) not enter into any Contract with aggregate payments which could exceed $50,000 (except for any Contract related to any Employee Benefit Plan of the Parent or any Subsidiary other than the Entities, and for which Contract neither Entity assumes or has any Liability not disclosed hereunder) or any Contract in respect of the rental of any Unit; (f) not enter into any employment agreement, or in any manner change the Person (as among the Parent and the Entities) which is the employer of the employees of the Parent and the Entities from the Person disclosed on the schedule referenced in the last sentence of Section 3.16(a) as such Product has not been returned at least ten employee's employer, or terminate the employment of any employees in a manner which is inconsistent with past practices or policies, or except as required by applicable Law, effect any increase in the rate or terms of compensation payable or to become payable to officers or employees of any Entity or the Parent (10) Business Days prior solely as relating to the Closing Date, Seller shall have no obligation Business) other than increases in compensation under Employee Benefit Plans which are available to close such complaints; andall employees generally; (vg) Seller shall promptly notify Parent and Acquisition Sub of not create or suffer to exist any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with Encumbrance on any of its assets or properties other than Permitted Encumbrances, Encumbrances on Equity Interests or assets of GK Finance or any assets of Subsidiaries of the transactions contemplated by Parent other than the Entities, and Encumbrances which exist on the date hereof and which have been disclosed on the Schedules to this Agreement.; (bh) During the Prenot change its tax or accounting principles, policies or practices, change any depreciation or amortization policies or rates previously adopted or write-Closing Period, Seller shall not (without the prior written consent of Parent):up inventory or any other assets; (i) (A) declare, accrue, set aside or pay any dividend on, or not make any material Tax election or compromise any material Tax Liability; (j) not make any payments to or for the benefit of GK Finance (other distribution than payments made on behalf of GK Finance and reimbursed by GK Finance on a basis consistent with past practices and in the ordinary course of business); (whether in cash, securities or other propertyk) in respect of, not amend any of its outstanding capital stock , (B) split, combine Organizational Documents or reclassify any of its outstanding capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests Contracts (other than the issuance of Seller Common Stock pursuant to the valid exercise of options to acquire Seller Common Stock outstanding as of the date of this Agreement), or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party Contracts related to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transactionEmployee Plan); (iiil) form any subsidiary or directly or indirectly acquire any equity or other interest in, or make any other investment in or capital contribution to, any other entity; (iv) except for capital expenditures relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insurance, make any single capital expenditure in excess of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000; (v) except as otherwise permitted by this Section 5.02, not enter into or become bound by, or permit any of the Purchased Assets to become bound by, any material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any material Contract, in each case transaction other than in the ordinary course of business and consistent business, or any transaction which is not at arms-length with past practicesunaffiliated third Persons; (vim) acquire, lease not take or license any right or other asset from any other Person or sell or otherwise dispose of, or lease or license, any right or other asset, including without limitation, any Purchased Intellectual Property omit to any other Person, except in each case for assets acquired, leased, licensed or disposed of by Seller in the ordinary course of business and consistent with past practices; (vii) dispose of or permit to lapse any material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practices; (viii) lend money to any Person, or incur or guarantee any indebtedness, including any additional borrowings under any existing lines of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices); (ix) except as required to comply with applicable Law, establish, adopt or amend any Employee Benefit Plan, pay, commit to pay or accelerate the payment of any bonus or make, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount of the wages, salary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any of its directors, officers, employees or consultants; provided, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severance; (x) other than in the ordinary course of business consistent with past practice, change any of its warranty policies in any material respect; (xi) make or rescind any material Tax election or settle or compromise any material Tax Liability of Seller; (xii) (A) commence or settle any material Proceeding, or (B) except as set forth on Schedule 3.10, pay, discharge or satisfy any material Claims, Liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation or any Contract relating to an Acquisition Proposal; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated; (xv) take any action that could be reasonably expected to which would result in any of the conditions set forth representations and warranties contained in Section 6.01 not this Agreement and the Related Documents being satisfied; (xvi) except in connection with the liquidation and dissolution of Seller after untrue on the Closing Date, enter into any material transaction or take any other material than such action outside as shall have been previously agreed to in writing by the ordinary course of business and inconsistent with past practicesparties hereto; (xviin) acquire, lease not make any material change in the manner in which such Person extends discounts or enter into credits to customers or any Contract to acquire material change in the manner or lease any Real Propertyterms by which such Person collects its accounts receivable or otherwise deals with customers; (xviiio) amend, modify, extend, or enter into any collective bargaining agreement or other Contract with any union or labor organization representing any employees of Seller; or (xix) not agree or otherwise commit to take any of the actions described in clauses set forth above; (p) promptly provide the Purchasers with at least five Business Days notice of (i) through the terms and conditions with respect to renewals of any existing Contracts to be renewed by the Entities, (xviiiii) any intention to not renew any existing Contracts and (iii) the actual nonrenewal of this Section 5.02(b).any existing Contract; (cq) Seller shall provide Parent conduct its business substantially as presently conducted and only in the ordinary course consistent with a copy ofpast practice; (r) use commercially reasonable efforts to (i) maintain its business, assets, relations with present employees, customers, suppliers, partners, licensees and substantively and timely respond on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact that they arose after the date hereof, would be classified operations as an Intellectual Property Communicationongoing business and preserve its goodwill, unless in accordance with past custom and practice and (ii) to satisfy each of the deadline for such response is more than thirty (30) calendar days after the Closing Date. Any substantive response closing conditions to be made pursuant to this Section 5.02(c) shall be first delivered to Parent for its approval (which shall not be unreasonably withheld) before any such substantive response is sent to the PTO. If the approval of Parent is not received before such time as Seller would have to send such response satisfied by it set forth in order for it to be timely, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of Parent.Article VII hereof; and (ds) Within two (2) Business Days from pay and continue to defer all accounts payable and all expenses in a manner which is consistent with past practices and in the date hereof, Seller will provide Parent with a current listing ordinary course of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions required to be taken in order to maintain such Patents and Trademarks as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING")business.

Conduct Pending Closing. From and after the date hereof until the earlier of the Closing or the termination of this Agreement pursuant to Article 8, each of the Sellers shall, and shall cause each Entity to (unless otherwise consented to in writing by the Purchasers): (a) During not sell, lease, license or otherwise dispose of any assets with a book value in excess of $50,000 in the Pre-Closing Period: (i) Seller shall conduct its businesses and operations in compliance in all material respects with all applicable Law (including the WARN Act) and with the requirements of all Specified Contractsaggregate; (iib) Seller shall provide full cooperation and shall take whatever actions necessary to effect the not issue, sell or in any way transfer as any Equity Interests of the Closing Date of all of Seller's Documentation and Foreign Documentation Entities or issue or sell any securities convertible into, exercisable or exchangeable for or options or warrants to Acquisition Subpurchase or rights to subscribe for, any such Equity Interests; (iiic) Seller shall keep in full forcenot change the number of authorized shares of the Equity Interests of the Entities or reclassify, combine, split, subdivide or redeem or otherwise repurchase any of such Equity Interests, or renew at appropriate levels issue, deliver, pledge or encumber any additional Equity Interests of coverage upon expirationthe Entities or other securities equivalent to, applicable insurance policiesor exchangeable for, Equity Interests of the Entities or enter into any Contract to do any of the foregoing; (ivd) not incur or issue any securities evidencing any Funded Indebtedness or enter into any operating leases (other than Funded Indebtedness of a Seller will close all outstanding Product complaints received for which no Entity (or its assets) is liable or obligated (whether contractually, by applicable Law, as a guarantor or through the incurrence or grant of any Encumbrances), Funded Indebtedness related to money advanced from Sellers or GK Finance to an Entity on a basis consistent with past practice and in the ordinary course of business, provided that the amounts so advanced are repaid prior to the Closing Date, provided that if such complaints require return Funded Indebtedness or operating leases outstanding on the date hereof and disclosed on any Schedules hereunder), or amend, modify or agree to a waiver of the Product terms of any Funded Indebtedness or operating leases (including, without limitation increasing any commitments to extend credit thereunder); (e) not enter into any Contract with aggregate payments which could exceed $50,000 (except for any Contract related to any Employee Benefit Plan of the Parent or any Subsidiary other than the Entities, and for which Contract neither Entity assumes or has any Liability not disclosed hereunder) or any Contract in respect of the rental of any Unit; (f) not enter into any employment agreement, or in any manner change the Person (as among the Parent and the Entities) which is the employer of the employees of the Parent and the Entities from the Person disclosed on the schedule referenced in the last sentence of Section 3.16(a) as such Product has not been returned at least ten employee's employer, or terminate the employment of any employees in a manner which is inconsistent with past practices or policies, or except as required by applicable Law, effect any increase in the rate or terms of compensation payable or to become payable to officers or employees of any Entity or the Parent (10) Business Days prior solely as relating to the Closing Date, Seller shall have no obligation Business) other than increases in compensation under Employee Benefit Plans which are available to close such complaints; andall employees generally; (vg) Seller shall promptly notify Parent and Acquisition Sub of not create or suffer to exist any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with Encumbrance on any of its assets or properties other than Permitted Encumbrances, Encumbrances on Equity Interests or assets of GK Finance or any assets of Subsidiaries of the transactions contemplated by Parent other than the Entities, and Encumbrances which exist on the date hereof and which have been disclosed on the Schedules to this Agreement.; (bh) During the Prenot change its tax or accounting principles, policies or practices, change any depreciation or amortization policies or rates previously adopted or write-Closing Period, Seller shall not (without the prior written consent of Parent):up inventory or any other assets; (i) (A) declare, accrue, set aside or pay any dividend on, or not make any material Tax election or compromise any material Tax Liability; (j) not make any payments to or for the benefit of GK Finance (other distribution than payments made on behalf of GK Finance and reimbursed by GK Finance on a basis consistent with past practices and in the ordinary course of business); (whether in cash, securities or other propertyk) in respect of, not amend any of its outstanding capital stock , (B) split, combine Organizational Documents or reclassify any of its outstanding capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests Contracts (other than the issuance of Seller Common Stock pursuant to the valid exercise of options to acquire Seller Common Stock outstanding as of the date of this Agreement), or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party Contracts related to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transactionEmployee Plan); (iiil) form any subsidiary or directly or indirectly acquire any equity or other interest in, or make any other investment in or capital contribution to, any other entity; (iv) except for capital expenditures relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insurance, make any single capital expenditure in excess of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000; (v) except as otherwise permitted by this Section 5.02, not enter into or become bound by, or permit any of the Purchased Assets to become bound by, any material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any material Contract, in each case transaction other than in the ordinary course of business and consistent business, or any transaction which is not at arms-length with past practicesunaffiliated third Persons; (vim) acquire, lease not take or license any right or other asset from any other Person or sell or otherwise dispose of, or lease or license, any right or other asset, including without limitation, any Purchased Intellectual Property omit to any other Person, except in each case for assets acquired, leased, licensed or disposed of by Seller in the ordinary course of business and consistent with past practices; (vii) dispose of or permit to lapse any material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practices; (viii) lend money to any Person, or incur or guarantee any indebtedness, including any additional borrowings under any existing lines of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices); (ix) except as required to comply with applicable Law, establish, adopt or amend any Employee Benefit Plan, pay, commit to pay or accelerate the payment of any bonus or make, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount of the wages, salary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any of its directors, officers, employees or consultants; provided, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severance; (x) other than in the ordinary course of business consistent with past practice, change any of its warranty policies in any material respect; (xi) make or rescind any material Tax election or settle or compromise any material Tax Liability of Seller; (xii) (A) commence or settle any material Proceeding, or (B) except as set forth on Schedule 3.10, pay, discharge or satisfy any material Claims, Liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation or any Contract relating to an Acquisition Proposal; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated; (xv) take any action that could be reasonably expected to which would result in any of the conditions set forth representations and warranties contained in Section 6.01 not this Agreement and the Related Documents being satisfied; (xvi) except in connection with the liquidation and dissolution of Seller after untrue on the Closing Date, enter into any material transaction or take any other material than such action outside as shall have been previously agreed to in writing by the ordinary course of business and inconsistent with past practicesparties hereto; (xviin) acquire, lease not make any material change in the manner in which such Person extends discounts or enter into credits to customers or any Contract to acquire material change in the manner or lease any Real Propertyterms by which such Person collects its accounts receivable or otherwise deals with customers; (xviiio) amend, modify, extend, or enter into any collective bargaining agreement or other Contract with any union or labor organization representing any employees of Seller; or (xix) not agree or otherwise commit to take any of the actions described in clauses set forth above; (p) promptly provide the Purchasers with at least five Business Days notice of (i) through the terms and conditions with respect to renewals of any existing Contracts to be renewed by the Entities, (xviiiii) any intention to not renew any existing Contracts and (iii) the actual nonrenewal of this Section 5.02(b).any existing Contract; (cq) Seller shall provide Parent conduct its business substantially as presently conducted and only in the ordinary course consistent with a copy ofpast practice; (r) use commercially reasonable efforts to (i) maintain its business, assets, relations with present employees, customers, suppliers, partners, licensees and substantively and timely respond on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact that they arose after the date hereof, would be classified operations as an Intellectual Property Communicationongoing business and preserve its goodwill, unless in accordance with past custom and practice and (ii) to satisfy each of the deadline for such response is more than thirty (30) calendar days after the Closing Date. Any substantive response closing conditions to be made pursuant to this Section 5.02(c) shall be first delivered to Parent for its approval (which shall not be unreasonably withheld) before any such substantive response is sent to the PTO. If the approval of Parent is not received before such time as Seller would have to send such response satisfied by it set forth in order for it to be timely, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of Parent.Article 6 hereof; and (ds) Within two (2) Business Days from pay and continue to defer all accounts payable and all expenses in a manner which is consistent with past practices and in the date hereof, Seller will provide Parent with a current listing ordinary course of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions required to be taken in order to maintain such Patents and Trademarks as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING")business.

Conduct Pending Closing. From the date of this Agreement to the Closing Date, (a) During the Pre-Closing Period: (i) Seller Ceding Companies and HealthMarkets shall use their best efforts to conduct its businesses their affairs in such a manner so that, except as otherwise contemplated or permitted by this Agreement or the Ancillary Agreements, the representations and operations warranties of the Ceding Companies and HealthMarkets contained in compliance Article III and Article IV hereof shall continue to be true and correct in all material respects with all applicable Law (including the WARN Act) on and with the requirements of all Specified Contracts; (ii) Seller shall provide full cooperation and shall take whatever actions necessary to effect the transfer as of the Closing Date as if made on and as of all of Seller's Documentation and Foreign Documentation to Acquisition Sub; (iii) Seller shall keep in full force, or renew at appropriate levels of coverage upon expiration, applicable insurance policies; (iv) Seller will close all outstanding Product complaints received prior to the Closing Date; (b) the Reinsurer shall use its best efforts to conduct its affairs in such a manner so that, provided that if such complaints require return except as otherwise contemplated or permitted by this Agreement or the Ancillary Agreements, the representations and warranties of the Product Reinsurer contained in Article V hereof shall continue to be true and such Product has not been returned at least ten (10) Business Days prior to correct in all material respects on and as of the Closing Date as if made on and as of the Closing Date, Seller shall have no obligation to close such complaints; and (v) Seller shall promptly notify Parent and Acquisition Sub of any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the transactions contemplated by this Agreement. (b) During the Pre-Closing Period, Seller shall not (without the prior written consent of Parent): (i) (A) declare, accrue, set aside or pay any dividend on, or make any other distribution (whether in cash, securities or other property) in respect of, any of its outstanding capital stock , (B) split, combine or reclassify any of its outstanding capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests (other than the issuance of Seller Common Stock pursuant to the valid exercise of options to acquire Seller Common Stock outstanding as of the date of this Agreement), or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transaction; (iii) form any subsidiary or directly or indirectly acquire any equity or other interest in, or make any other investment in or capital contribution to, any other entity; (iv) except for capital expenditures relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insurance, make any single capital expenditure in excess of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000; (v) except as otherwise permitted by this Section 5.02, enter into or become bound by, or permit any of the Purchased Assets to become bound by, any material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any material Contract, in each case other than in the ordinary course of business and consistent with past practices; (vi) acquire, lease or license any right or other asset from any other Person or sell or otherwise dispose of, or lease or license, any right or other asset, including without limitation, any Purchased Intellectual Property to any other Person, except in each case for assets acquired, leased, licensed or disposed of by Seller in the ordinary course of business and consistent with past practices; (vii) dispose of or permit to lapse any material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practices; (viii) lend money to any Person, or incur or guarantee any indebtedness, including any additional borrowings under any existing lines of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices); (ix) except as required to comply with applicable Law, establish, adopt or amend any Employee Benefit Plan, pay, commit to pay or accelerate the payment of any bonus or make, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount of the wages, salary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any of its directors, officers, employees or consultants; provided, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severance; (x) other than in the ordinary course of business consistent with past practice, change any of its warranty policies in any material respect; (xi) make or rescind any material Tax election or settle or compromise any material Tax Liability of Seller; (xii) (A) commence or settle any material Proceeding, or (B) except as set forth on Schedule 3.10, pay, discharge or satisfy any material Claims, Liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation or any Contract relating to an Acquisition Proposal; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated; (xv) take any action that could be reasonably expected to result in any of the conditions set forth in Section 6.01 not being satisfied; (xvi) except in connection with the liquidation and dissolution of Seller after the Closing Date, enter into any material transaction or take any other material action outside the ordinary course of business and inconsistent with past practices; (xvii) acquire, lease or enter into any Contract to acquire or lease any Real Property; (xviii) amend, modify, extend, or enter into any collective bargaining agreement or other Contract with any union or labor organization representing any employees of Seller; or (xix) agree or commit to take any of the actions described in clauses (i) through (xviii) of this Section 5.02(b). (c) Seller the Ceding Companies and HealthMarkets shall provide Parent with a copy ofnotify the Reinsurer promptly of any event, and substantively and timely respond on condition or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof circumstance which, but for the fact that they arose after if existing or known on the date hereof, would be classified as an Intellectual Property Communication, unless the deadline for such response is more than thirty (30) calendar days after the Closing Date. Any substantive response have been required to be made set forth in any schedule or disclosed pursuant to this Section 5.02(c) shall be first delivered to Parent for its approval (which shall not be unreasonably withheld) before any such substantive response is sent to the PTO. If the approval of Parent is not received before such time as Seller would have to send such response in order for it to be timely, Parent shall be deemed to have approved such response. Regardless Agreement or of any explicit fact which, if existing or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of Parent. (d) Within two (2) Business Days from known on the date hereof, Seller will provide Parent with a current listing would have made any of the Intellectual Property Communications having due dates representations of such party contained herein untrue in any material respect; and (d) the Reinsurer shall notify the Ceding Companies and HealthMarkets promptly of any event, condition or circumstance which, if existing or known on or before March 31the date hereof, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions would have been required to be taken set forth in order any schedule or disclosed pursuant to maintain this Agreement or of any fact which, if existing or known on the date hereof, would have made any of the representations of the Reinsurer contained herein untrue in any material respect. No such Patents and Trademarks information shall impact any representation or warranty of the party disclosing such information in connection with any breach of any representation or warranty; provided that a breach of this Section 6.9 shall not be considered for purposes of determining the satisfaction of the closing conditions set forth in Article VII or give rise to a right of termination under Article XI if the underlying breach or breaches with respect to which the other party failed to give notice would not result in the failure of the closing conditions set forth in Article VII or would not result in the ability of such non-breaching Party to terminate this Agreement under Article XI, as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING")case may be.

Conduct Pending Closing. (a) During the Pre-Closing Period: (i) Seller shall conduct its businesses and operations in compliance in all material respects with all applicable Law (including the WARN Act) and with the requirements of all Specified Contracts; (ii) Seller shall provide full cooperation and shall take whatever actions necessary Prior to effect the transfer as of the Closing Date of all of Seller's Documentation and Foreign Documentation to Acquisition Sub; (iii) Seller shall keep in full force, or renew at appropriate levels of coverage upon expiration, applicable insurance policies; (iv) Seller will close all outstanding Product complaints received prior to the Closing Date, provided that if such complaints require return of the Product and such Product has not been returned at least ten (10) Business Days prior to the Closing Date, Seller shall have no obligation to close such complaints; and (v) Seller shall promptly notify Parent and Acquisition Sub of any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with any consummation of the transactions contemplated hereby or the termination or expiration of this Agreement pursuant to its terms, and except to the extent approved by the other Facilities Owners or Facilities Switchyard Owners, as the case may be, Seller shall, in its capacity as a Facilities Owner and/or a Facilities Switchyard Owner, as the case may be, exercise its rights and discharge its obligations under the Facilities Co-Tenancy Agreement and/or the Facilities Switchyard Agreement in a manner which allows the Operating Agent or the Facilities Switchyard Operating Agent, as the case may be, to: (a) Operate and maintain the Assets materially in accordance with the usual and ordinary course, consistent with practices followed prior to the execution of this Agreement.; (b) During the Pre-Closing Period, Seller shall not (without the prior written consent of Parent): (i) (A) declare, accrue, set aside or pay any dividend onExcept as required by their terms, or make any other distribution (whether in cash, securities or other property) in respect of, any of its outstanding capital stock , (B) split, combine or reclassify any of its outstanding capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests (other than the issuance of Seller Common Stock pursuant except to the valid exercise of options extent agreed to acquire Seller Common Stock outstanding unanimously by the Facilities Owners or Facilities Switchyard Owners, as of the date of this Agreement)case may be, not amend, terminate, renew, or (C) purchase, redeem renegotiate any existing Facilities Contract or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transaction; (iii) form any subsidiary or directly or indirectly acquire any equity or other interest in, or make any other investment in or capital contribution to, any other entity; (iv) except for capital expenditures relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insurance, make any single capital expenditure in excess of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000; (v) except as otherwise permitted by this Section 5.02, enter into or become bound by, or permit any of the Purchased Assets to become bound by, any material new Facilities Contract, or amend or terminate, or waive or exercise any material right or remedy under, any material Contract, in each case other than except in the ordinary course of business and consistent with past practicespractices of the recent past, or default (or take or omit to take any action that with or without the giving of notice or passage of time, would constitute a default) under any of their obligations under any such contracts; (vic) acquireNot: (i) sell, lease lease, transfer or license any right or other asset from any other Person or sell or otherwise dispose of, or lease make any contract for the sale lease, transfer or licensedisposition of, any right assets or properties which would be included in the Assets, other asset, including without limitation, any Purchased Intellectual Property to any other Person, except in each case for assets acquired, leased, licensed or disposed of by Seller than sales in the ordinary course of business which would not individually, or in the aggregate, have a Material Adverse Effect upon the operations or value of the Facilities or the Facilities Switchyard; (ii) incur, assume, guaranty, or otherwise become liable in respect of any indebtedness for money borrowed which would result in Purchaser assuming such liability hereunder after the Closing; (iii) delay the payment and consistent with past practicesdischarge of any liability which, upon Closing, would be an Assumed Liability, because of the transactions contemplated hereby; or (iv) encumber or voluntarily subject to any lien any Asset, except for Permitted Encumbrances; (viid) dispose of or permit to lapse any Maintain in force and effect the material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent property and Acquisition Sub any material trade secret, formula, process or know-how liability insurance policies related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business Facilities or the Facilities Switchyard and consistent with past practicesthe Assets; (viiie) lend money Not take any action which would cause any of Seller's representations and warranties set forth in ARTICLE 4 to any Person, or incur or guarantee any indebtedness, including any additional borrowings under any existing lines be materially false as of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices)Closing; (ixf) except as required Not take any action or exercise any voting right with respect to comply the Facilities or the Facilities Switchyard, including voting rights under the Facilities Contracts, other than in good faith; subject to the foregoing, with applicable Law, establish, adopt or amend respect to any Employee Benefit Plan, pay, commit to pay or accelerate the payment of any bonus or make, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount matter which requires a vote of the wagesFacilities Owners or the Facilities Switchyard Owners, salaryas the case may be, commissionsSeller shall, fringe benefitsif reasonably practicable, severanceconsult with Purchaser prior to such vote and take the Purchaser's views into account in good faith; and (g) Provide effluent or services relating to effluent to Purchaser's power plant development known as Redhawk consistent with the terms contained in the draft proposal of the Operating Agent, insurance forwarded to Seller on April 26, 2000 or other compensation or remuneration payable to, any of its directors, officers, employees or consultantson terms no less favorable to the Facilities Owners; provided, however, that nothing in this Section 5.02(b)(ixshall (i) shall prevent preclude Seller from paying (paying, prepaying or committing to pay) consideration in the aggregate amount otherwise satisfying any liability which, if outstanding as of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severance; (x) other than in the ordinary course of business consistent with past practice, change any of its warranty policies in any material respect; (xi) make or rescind any material Tax election or settle or compromise any material Tax Liability of Seller; (xii) (A) commence or settle any material Proceeding, or (B) except as set forth on Schedule 3.10, pay, discharge or satisfy any material Claims, Liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation or any Contract relating to an Acquisition Proposal; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated; (xv) take any action that could be reasonably expected to result in any of the conditions set forth in Section 6.01 not being satisfied; (xvi) except in connection with the liquidation and dissolution of Seller after the Closing Date, enter into any material transaction would be an Assumed Liability or take any other material action outside the ordinary course of business and inconsistent with past practices; (xvii) acquire, lease or enter into any Contract to acquire or lease any Real Property; (xviii) amend, modify, extendan Excluded Liability, or enter into (ii) preclude Seller from incurring any collective bargaining agreement liabilities or other Contract obligations to any third party in connection with obtaining such Party's consent to any union transaction contemplated by this Agreement or labor organization representing any employees of Seller; or (xix) agree or commit to take any of the actions described in clauses (i) through (xviii) of this Section 5.02(b)Ancillary Agreements. (c) Seller shall provide Parent with a copy of, and substantively and timely respond on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact that they arose after the date hereof, would be classified as an Intellectual Property Communication, unless the deadline for such response is more than thirty (30) calendar days after the Closing Date. Any substantive response to be made pursuant to this Section 5.02(c) shall be first delivered to Parent for its approval (which shall not be unreasonably withheld) before any such substantive response is sent to the PTO. If the approval of Parent is not received before such time as Seller would have to send such response in order for it to be timely, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of Parent. (d) Within two (2) Business Days from the date hereof, Seller will provide Parent with a current listing of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions required to be taken in order to maintain such Patents and Trademarks as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING").

Conduct Pending Closing. (al) During From the Pre-Closing Period: Effective Date through the Closing, unless each applicable Purchaser shall otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, and except for (i) actions required by Law, (ii) actions permitted by this Agreement or any Ancillary Agreement or necessary to consummate the Transactions and expressly contemplated hereunder or thereunder, and (iii) subject to the other terms of this Agreement, reasonable actions taken in response to an emergency, forced outage or an event of force majeure in accordance with Good Industry Practices and promptly disclosed in writing to each applicable Purchaser, Seller shall, and, where applicable, shall cause its Affiliates to conduct its businesses the Business and operations operate and maintain the Project (or cause the Project to be operated and maintained) in compliance accordance with all Laws and Permits in all material respects and in the ordinary course of business consistent with past practices, including (A) operating and maintaining the systems, equipment and machinery of the Project that are Purchased Assets in compliance with all applicable Law (Laws and Permits in all material respects, including the WARN Act) and compliance with the manufacturer's technical requirements and information in all material respects, (B) making timely and complete application to the applicable Governmental Authority for the renewal of all Specified Contracts; (ii) Seller shall provide full cooperation and shall take whatever actions necessary to effect the transfer as of the Closing Date of all of any material Seller's Documentation and Foreign Documentation Permit so as to Acquisition Sub; (iii) Seller shall keep in full force, or renew at appropriate levels of coverage upon expiration, applicable insurance policies; (iv) Seller will close all outstanding Product complaints received effectuate such renewal reasonably prior to the Closing Datescheduled expiration date of such Seller's Permit and (C) using Commercially Reasonable Efforts to preserve the good will of lessors, provided that if such complaints require return suppliers, Employees, licensors, agents, contractors, and other Persons having a material business relationship with Seller or any of the Product and such Product has not been returned at least ten (10) Business Days prior its Affiliates with respect to the Project or the Business or Governmental Authorities having jurisdiction over the Project, the Project Real Property or the Business. In addition, with respect to each Contract that would be a Purchased Contract or a Purchased License entered into by Seller or any of its Affiliates from and after the Effective Date through the Closing Datethat includes a Purchased Warranty, Seller shall, and where applicable, shall have no obligation cause its Affiliates to, use Commercially Reasonable Efforts to close cause each such complaints; andContract to permit Seller or its Affiliates to freely assign such Purchased Warranty to the applicable Purchaser without the consent of any Person. (vm) Seller From the Effective Date through the Closing, unless each applicable Purchaser shall promptly notify Parent otherwise consent in writing, which consent shall not be unreasonably withheld, conditioned or delayed, and Acquisition Sub of any notice except for actions required by Law, actions permitted by this Agreement or other communication from any Person alleging that an Ancillary Agreement or necessary to consummate the Consent of such Person is Transactions or may be required in connection with any of the transactions contemplated by the Ancillary Agreements and expressly contemplated hereunder or thereunder, and, subject to the other terms of this Agreement. (b) During the Pre-Closing Period, reasonable actions taken in response to an emergency, a forced outage or an event of force majeure in accordance with Good Industry Practices and promptly disclosed in writing to each applicable Purchaser, Seller shall not, and, where applicable to the Purchased Assets or the Business, shall cause its Affiliates not (without the prior written consent of Parent):to: (i) (A) declareamend, accrue, set aside supplement or pay otherwise modify in any dividend onmaterial respect, or make terminate or, except as required by its terms, renew or extend any other distribution (whether in cash1) Purchased Contract, securities (2) Purchased License or other property(3) in respect ofmaterial Permit; provided, that Seller may extend (I) for a term that will expire no later than the earlier of (x) eighteen (18) months from such extension or (y) May 31, 2017 and on substantially similar terms not materially more favorable to the counterparty thereto, any Purchased Contract where it is necessary to do so in order for Seller to continue to operate the Project in the ordinary course of its outstanding capital stock the conduct of the Business consistent with past practices and (II) any material Permit subject to compliance with Section 6.5(f), (B) splitwaive any material default by, combine material term of or reclassify material right against, or release, settle or compromise any of its outstanding capital stock or other equity interests or issue or authorize the issuance of material claim against, any other securities in respect of, in lieu party to a Purchased Contract or a Purchased License arising out of or in substitution for shares of its outstanding capital stock or other equity interests (other than the issuance of Seller Common Stock pursuant related to the valid exercise of options to acquire Seller Common Stock outstanding as of the date of this Agreement)such Contract, or (C) purchaseenter into any new Purchased Contract (other than as provided in Section 2.1(f), redeem Section 2.5(f), Section 2.9(f), Section 2.13(f) or otherwise acquire any shares of outstanding capital stock Section 2.17(f), as applicable) or any rights, warrants or options to acquire any such sharesPurchased License; (ii) amend (A) sell, lease, license, transfer or permit otherwise dispose of, or remove from the adoption Project, or make or enter into any Contract for the sale, lease, license, transfer, disposition or removal of, any material asset or property that would be included in the Purchased Assets, except for (1) (x)the disposition of Inventory or (y) (I) the disposition of PB1 Major Maintenance Spares, PB2 Major Maintenance Spares, PB3 Major Maintenance Spares, PB4 Major Maintenance Spares or Common Facilities Spares or (II) the transfer, disposition or removal of obsolete, broken, damaged or worn-out assets, in the case of (x) and (y), in the ordinary course of the conduct of the Business consistent with past practices, (2) any sale, lease, license, transfer, or disposition of such assets or properties made to any Purchaser or any Affiliate of any amendment Purchaser, and (3) the conversion of fuel into electric energy in the ordinary course of business (and the resulting sale of such electric energy together with the sale of other electric products); or (B) except in the ordinary course of business consistent with past practices, transfer, use or re-characterize any item of Common Facilities Tangible Personal Property in a manner that causes such item of (1) Common Facilities Tangible Personal Property to its certificate of incorporation or bylaws, or effect or become a party PB1 Asset, a PB2 Asset, a PB3 Asset or a PB4 Asset, (2) PB1 Tangible Personal Property to any mergerbecome a PB2 Asset, consolidationa PB3 Asset, share exchangea PB4 Asset or a Common Facilities Asset, business combination(3) PB2 Tangible Personal Property to become a PB1 Asset, amalgamationa PB3 Asset, recapitalizationa PB4 Asset or a Common Facilities Asset, reclassification of shares(4) PB3 Tangible Personal Property to become a PB1 Asset, stock splita PB2 Asset, reverse stock splita PB4 Asset or a Common Facilities Asset or (5) PB4 Tangible Personal Property to become a PB1 Asset, division a PB2 Asset, a PB3 Asset or subdivision of shares, consolidation of shares or similar transactiona Common Facilities Asset; (iii) form any subsidiary permit, allow or directly or indirectly acquire any equity or other interest in, or make any other investment in or capital contribution to, any other entity; (iv) except for capital expenditures relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insurance, make any single capital expenditure in excess of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000; (v) except as otherwise permitted by this Section 5.02, enter into or become bound by, or permit cause any of the Purchased Assets to become bound bysubject to any Encumbrance, other than a Permitted Encumbrance; (iv) resolve, settle or compromise (x) any material ContractEnvironmental Claim or any Action under any Law, or amend (y) to the extent Seller has Knowledge of an investigation pending before or terminatebeing conducted by a Governmental Authority, arbitrator or waive mediator relating to the Business or exercise any material right or remedy underthe Purchased Assets, any material Contractsuch investigation, except in each case to the extent such resolution, settlement or compromise is an Excluded Liability and would not (A) require or involve any post-Closing Remediation or (B) have a material and adverse effect upon any Purchaser's ownership, operation or use of, or the value of, the Purchased Assets, or any Purchaser's conduct of the Business (assuming the same is conducted consistent with Seller’s pre-Closing conduct), after the Closing; (v) incur any obligation for borrowed money secured by the Purchased Assets other than extensions of credit and similar events in the ordinary course of business and consistent with past practicesthe conduct of the Business; (vi) acquire, lease delay beyond its due date the payment or license discharge of any right account payable or other asset from obligation or liability that, upon or after the Closing, would be an Assumed Liability or could reasonably be expected to adversely affect, in any other Person material respect, the operation, maintenance or sell physical condition of the Purchased Assets or the conduct of the Business after the Closing; (vii) sell, transfer, swap, or otherwise dispose of, or lease or license, make unavailable to the Project Purchasers at the Closing any right or other asset, including without limitation, any Purchased Intellectual Property to any other Personof the Project Emission Allowances, except in each case for assets acquired, leased, licensed or disposed the surrender of by Seller Project Emission Allowances to the issuing Governmental Authority in the ordinary course of business and consistent with past practices; (vii) dispose the conduct of or permit to lapse any material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practices; (viii) lend money make any material change to any Personthe levels of Project Inventory maintained at the Project, or incur or guarantee any indebtedness, including any additional borrowings under any existing lines of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and the conduct of the Business, consistent with past practices); (ix) change any method, practice, or principle of financial or tax accounting that is material to the consummation of the Transactions or the obligations of the Parties hereunder, except as required to comply with applicable by GAAP or Law, establish, adopt or amend any Employee Benefit Plan, pay, commit to pay or accelerate the payment of any bonus or make, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount of the wages, salary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any of its directors, officers, employees or consultants; provided, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severance; (x) other than in make any fundamental change to the ordinary course of business consistent with past practice, change any of its warranty policies in any material respectBusiness; (xi) make or rescind change any material Tax election or settle registration with MISO with respect to the Project that would be applicable to the Project or compromise any material Tax Liability of SellerPower Block after Closing except as otherwise required or permitted by this Agreement (including pursuant to Sections 2.23, 6.19, 6.20 and 6.22); (xii) (A) commence or settle any material Proceeding, or (B) except as set forth on Schedule 3.10otherwise required by applicable Law, paymake any promise, discharge directly or satisfy indirectly, to any material Claims, Liabilities Project Employee (whether in writing or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)not) with respect to continued employment related to the Project; (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation install the Xxxxxxx "Ovation Turbine Controls" system or any Contract relating to an Acquisition Proposal;similar system at the Project other than the General Electric "Xxxx VI Controls" system; or (xiv) permit any material insurance policy naming it as a beneficiary authorize or a loss payable payee commit to be cancelled do or terminated; (xv) take any action that could be reasonably expected agree to result take, whether in writing or otherwise, any of the conditions set forth in Section 6.01 not being satisfied;foregoing prohibited actions. (xvin) except Nothing in connection with the liquidation and dissolution this Section 6.3 shall preclude Seller or any Affiliate of Seller after from (i) paying, prepaying or otherwise satisfying any monetary liability that, if outstanding as of the Closing Date, enter into would be an Assumed Liability or an Excluded Liability, (ii) incurring any material transaction liability or take obligation to any other material action outside the ordinary course of business third party in connection with obtaining such party's Consent to any Transaction; provided, that any and inconsistent with past practices; (xvii) acquire, lease or enter into any Contract to acquire or lease any Real Property; (xviii) amend, modify, extendall such liabilities and obligations so incurred are Excluded Liabilities, or enter into (iii) acquiring any collective bargaining agreement or other Contract with any union or labor organization representing any employees of Seller; or (xix) agree or commit to take any of the actions described in clauses (i) through (xviii) of this Section 5.02(b). (c) Seller shall provide Parent with a copy of, and substantively and timely respond on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact asset that they arose after the date hereof, would be classified as an Intellectual Property Communication, unless the deadline for such response is more than thirty (30) calendar days after the Closing Date. Any substantive response to be made pursuant to this Section 5.02(c) shall be first delivered to Parent for its approval (which shall not be unreasonably withheld) before any such substantive response is sent to the PTO. If the approval of Parent is not received before such time as Seller would have to send such response in order for it to be timely, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of ParentExcluded Asset. (d) Within two (2) Business Days from the date hereof, Seller will provide Parent with a current listing of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions required to be taken in order to maintain such Patents and Trademarks as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING").

Conduct Pending Closing. Prior to consummation of the transactions contemplated hereby or the termination of this Agreement pursuant to its terms, unless Buyer shall otherwise consent in writing, Sellers shall conduct the Business and otherwise deal with the Acquired Assets only in the usual and Ordinary Course of Business materially consistent with practices followed prior to the execution of this Agreement, except for (a) During actions which arise from or are related to the Pre-anticipated transfer of the Acquired Assets, (b) the effectuation of ongoing compliance programs, (c) actions contemplated by this Agreement, the transactions contemplated hereby and the Related Agreements, or (d) actions disclosed on any Schedule to this Agreement. Prior to Closing Period:or termination of this Agreement, Sellers shall promptly inform Xxxxx of any material events or changes relating to the operation of the Business, consult with Buyer regarding the Business as reasonably requested by Xxxxx and shall promptly respond to Buyer regarding the Business or the Acquired Assets. Without limiting the generality of the foregoing, and except as required pursuant to the terms of this Agreement, from the Execution Date until the Closing or termination of this Agreement, Sellers shall not with respect to the Business, except in the Ordinary Course of Business or pursuant to preexisting Contracts, Orders, agreements, policies, or as disclosed (whether orally or in writing): (i) Seller shall conduct its businesses and operations incur any indebtedness other than in compliance in all material respects with all applicable Law (including the WARN Act) and with the requirements Ordinary Course of all Specified ContractsBusiness; (ii) Seller shall provide full cooperation and shall take whatever actions necessary to effect the transfer as of the Closing Date of all of Seller's Documentation and Foreign Documentation to Acquisition Subamend their governance documents; (iii) Seller shall keep in full forcepay or increase any bonuses, salaries, or renew at appropriate levels of coverage upon expirationother compensation to any director, applicable insurance policiesofficer, employee, consultant or independent contractor or enter into any employment, severance or similar contract with any director, officer, employee, consultant or independent contractor; (iv) Seller will close all outstanding Product complaints received prior adopt or increase the payments to the Closing Dateor benefits under, provided that if such complaints require return of the Product and such Product has not been returned at least ten (10) Business Days prior to the Closing Dateany profit sharing, Seller shall have no obligation to close such complaints; and (v) Seller shall promptly notify Parent and Acquisition Sub of any notice bonus, deferred compensation, savings, insurance, pension, retirement or other communication from any Person alleging that the Consent of such Person is employee benefit plan for or may be required in connection with any of the transactions contemplated by this Agreement. (b) During the Pre-Closing Period, Seller shall not (without the prior written consent of Parent): (i) (A) declare, accrue, set aside or pay any dividend on, or make any other distribution (whether in cash, securities or other property) in respect of, any of its outstanding capital stock , (B) split, combine or reclassify any of its outstanding capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests (other than the issuance of Seller Common Stock pursuant to the valid exercise of options to acquire Seller Common Stock outstanding as of the date of this Agreement), or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transaction; (iii) form any subsidiary or directly or indirectly acquire any equity or other interest in, or make any other investment in or capital contribution to, any other entity; (iv) except for capital expenditures relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insurance, make any single capital expenditure in excess of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000employees; (v) except as otherwise permitted by this Section 5.02, enter into or become bound by, or permit any maybe necessary for the continued operation of the Purchased Assets to become bound byBusiness, acquire any material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any material Contract, in each case assets (other than in connection with customary retirement and replacement programs) or sell (other than sales of Inventory in the ordinary course Ordinary Course of business Business), lease or otherwise dispose of any material asset or property (other than retirements of assets in accordance with their respective useful lives or the normal policies and consistent with past practicesprocedures of Sellers) or mortgage, pledge, or impose any material Lien or other encumbrance on any material asset or property constituting a part of the Acquired Assets, other than Permitted Encumbrances; (vi) acquireenter into any material contract which would be an Assigned Contract or any material amendment, lease modification or license termination (partial or complete) of any right Assigned Contract or other asset from grant any other Person waiver under or sell or otherwise dispose of, or lease or license, give any right or other asset, including without limitation, any Purchased Intellectual Property consent with respect to any other Person, except in each case for assets acquired, leased, licensed or disposed of by Seller in the ordinary course of business and consistent with past practicesAssigned Contract; (vii) dispose knowingly or intentionally cancel or waive any claims or rights with a value, individually or in the aggregate, in excess of or permit to lapse any material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practicesTen Thousand Dollars ($10,000); (viii) lend money to any Personchange its significant accounting principles, except as required by GAAP or incur or guarantee any indebtedness, including any additional borrowings under any existing lines of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices)applicable Laws; (ix) except as required to comply with applicable Lawmerge or consolidate with, establishor make any material capital investment in, adopt or amend any Employee Benefit Planmaterial loan to, pay, commit to pay or accelerate the payment of any bonus or make, commit to make or accelerate any profit-sharing or similar payment material advance to, or increase or commit to increase the amount material acquisition of the wages, salary, commissions, fringe benefits, severance, insurance securities or other compensation or remuneration payable toassets of, any of its directors, officers, employees or consultants; provided, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severanceother Person; (x) other settle or agree to settle any litigation relating to the Acquired Assets, except with respect to claims having a value of less than Ten Thousand Dollars ($10,000) individually or in the ordinary course of business consistent with past practice, change any of its warranty policies in any material respectaggregate; (xi) make incur, create or rescind suffer to exist any material Tax election Liens (other than Permitted Encumbrances) that shall not be removed at or settle or compromise any material Tax Liability of Sellerprior to Closing; (xii) (A) commence enter into any agreement which would be an Assumed Provider Agreement or settle any material Proceedingamendment, modification or termination (Bpartial or complete) except as set forth on Schedule 3.10, pay, discharge of any Assumed Provider Agreement or satisfy grant any material Claims, Liabilities waiver under or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)give any material consent with respect to any Assumed Provider Agreement; (xiii) except as provided take any action that would constitute or result in Section 5.04(b) hereinthe breach of any term, adopt condition or enter into provision of, or constitute a default under (with or without notice or lapse of time or both), mergeror give rise to any right of acceleration, consolidation termination or cancellation with respect to any Contract relating to an Acquisition Proposal;Assigned Contract, License or Assumed Provider Agreement. (xiv) permit transfer, abandon, cancel or terminate before the natural expiration of its term any material insurance policy naming it as a beneficiary Assigned Contract or a loss payable payee License included in the Acquired Assets. Notwithstanding anything in this Agreement to be cancelled the contrary, nothing in this Section 5.2 shall (i) obligate Sellers to make expenditures other than in the Ordinary Course of Business and consistent with practices of the recent past or terminated; to otherwise suffer any economic detriment outside the Ordinary Course of Business, (xvii) take preclude any action that could be reasonably expected Seller from instituting or completing any program designed to result promote compliance or to comply with Laws or other good business practices respecting the Business, or (iii) preclude Sellers from transferring, selling, or otherwise dealing in any manner with any of the conditions set forth in Section 6.01 not being satisfied; (xvi) except in connection with the liquidation and dissolution of Seller after the Closing Date, enter into any material transaction or take any other material action outside the ordinary course of business and inconsistent with past practices; (xvii) acquire, lease or enter into any Contract to acquire or lease any Real Property; (xviii) amend, modify, extend, or enter into any collective bargaining agreement or other Contract with any union or labor organization representing any employees of Seller; or (xix) agree or commit to take any of the actions described in clauses (i) through (xviii) of this Section 5.02(b). (c) Seller shall provide Parent with a copy of, and substantively and timely respond on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact that they arose after the date hereof, would be classified as an Intellectual Property Communication, unless the deadline for such response is more than thirty (30) calendar days after the Closing DateExcluded Assets. Any substantive response to be made pursuant to this Section 5.02(c) shall be first delivered to Parent for its approval (which shall not be unreasonably withheld) before any such substantive response is sent In addition to the PTO. If the approval of Parent is not received before such time as Seller would have foregoing, Sellers agree to send such response in order for it to be timely, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of Parent. (d) Within two (2) Business Days from the date hereof, Seller will provide Parent with a current listing of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions required to be taken in order use commercially reasonable efforts to maintain such Patents and Trademarks as well as a list specifying the foreign patent associates handling each Patent preserve business relationships intact, including maintaining their relationships with physicians or Trademark (the "PATENT AND TRADEMARK LISTING")medical staff.

Conduct Pending Closing. During the period from the date of execution of this Agreement through Closing, Asset Seller and Target Company shall: (a) During operate the Pre-Closing Period: (i) Seller shall conduct its businesses and operations Business in compliance the ordinary course in all material respects with all applicable Law (including substantially the WARN Act) and with the requirements of all Specified Contractsmanner in which heretofore conducted; (iib) Seller shall provide full cooperation preserve intact the Business organization and shall take whatever actions necessary to effect the transfer as of the Closing Date of all of Seller's Documentation goodwill, and Foreign Documentation to Acquisition Sub; (iii) Seller shall keep in full force, or renew at appropriate levels of coverage upon expiration, applicable insurance policies; (iv) Seller will close all outstanding Product complaints received prior to the Closing Date, provided that if such complaints require return of the Product maintain satisfactory relationships with its customers and such Product has not been returned at least ten (10) Business Days prior to the Closing Date, Seller shall have no obligation to close such complaintssuppliers and other third Persons having business relationships; and (vc) maintain and keep properties and assets in as good repair and condition as at date hereof, ordinary wear and tear excepted. In addition, Asset Seller shall promptly notify Parent and Acquisition Sub of any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection Target Company will not, except with Buyer’s prior written consent, do any of the transactions contemplated by this Agreement.following as it relates to the Business: (a) increase the compensation payable to, or to become payable to, officer or other employee of Target Company (except for increases related to the Excluded Employees) or Asset Seller as disclosed in Schedule 4.17; (b) During the Pre-Closing Periodgrant any severance, Seller shall not (without the prior written consent of Parent): (i) (A) declare, accrue, set aside or pay any dividend ontermination, or make any other distribution payment arising as the result of termination of employment (whether in cash, securities such termination was before or other property) in respect of, any of its outstanding capital stock , (B) split, combine or reclassify any of its outstanding capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests (other than the issuance of Seller Common Stock pursuant to the valid exercise of options to acquire Seller Common Stock outstanding as of after the date of this Agreement), or excluding any amounts (Cincluding accrued annual leave) purchaseaccrued as a result of actual service prior to the date of termination, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylawsto, or effect enter into any employment or become a party severance agreement with, any director or employee (except for payments and agreements related to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transactionthe Excluded Employees); (iiic) form establish or amend any subsidiary employment, severance or directly consulting contract or indirectly acquire any equity employee benefit or other interest in, or make any other investment in or capital contribution to, any other entityspecial compensation; (ivd) except for capital expenditures relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insurancesell, make any single capital expenditure in excess of $25,000 orlease, when added to all other capital expenditures made by Seller during the Pre-Closing Periodexchange, exceed a total of $75,000; (v) except as mortgage, pledge, transfer or otherwise permitted by this Section 5.02, enter into or become bound bydispose of, or permit agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, any of the Purchased Assets to become bound byits assets, any material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any material Contract, in each case other than except in the ordinary course of business and consistent with past practicespractice (in amount and form), in each case excluding transactions relating solely to the Excluded Assets and Excluded Liabilities; (vie) acquire, lease incur or license assume any right or other asset from any other Person or sell or otherwise dispose of, or lease or license, any right or other asset, including without limitation, any Purchased Intellectual Property to any other Person, except in each case indebtedness for assets acquired, leased, licensed or disposed of by Seller in the ordinary course of business and consistent with past practices; (vii) dispose of or permit to lapse any material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practices; (viii) lend borrowed money to any Person, or incur or guarantee any such indebtedness, including any additional borrowings under any existing lines or guarantee, endorse or otherwise become responsible for the obligations of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices);third parties; or (ixf) except as required take any action or fail to comply with applicable Law, establish, adopt or amend any Employee Benefit Plan, pay, commit to pay or accelerate the payment of any bonus or make, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount of the wages, salary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any of its directors, officers, employees or consultants; provided, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severance; (x) other than in the ordinary course of business consistent with past practice, change any of its warranty policies in any material respect; (xi) make or rescind any material Tax election or settle or compromise any material Tax Liability of Seller; (xii) (A) commence or settle any material Proceeding, or (B) except as set forth on Schedule 3.10, pay, discharge or satisfy any material Claims, Liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation or any Contract relating to an Acquisition Proposal; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated; (xv) take any action that could be materially adverse to the assets, financial condition, future prospects or business or operations of the Business, or to the ability of Target Company to consummate the transactions contemplated by this Agreement and the Ancillary Agreements prior to or after the Closing, or that could reasonably be expected to result in any adversely affect the ability of the conditions set forth in Section 6.01 not being satisfied; (xvi) except in connection with the liquidation and dissolution of Target Company or Asset Seller after prior to the Closing Date, enter into any material transaction to obtain consents of third parties or take any other material action outside the ordinary course approvals of business and inconsistent with past practices; (xvii) acquire, lease or enter into any Contract to acquire or lease any Real Property; (xviii) amend, modify, extend, or enter into any collective bargaining agreement or other Contract with any union or labor organization representing any employees of Seller; or (xix) agree or commit to take any of the actions described in clauses (i) through (xviii) of this Section 5.02(b). (c) Seller shall provide Parent with a copy of, and substantively and timely respond on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact that they arose after the date hereof, would be classified as an Intellectual Property Communication, unless the deadline for such response is more than thirty (30) calendar days after the Closing Date. Any substantive response to be made pursuant to this Section 5.02(c) shall be first delivered to Parent for its approval (which shall not be unreasonably withheld) before any such substantive response is sent to the PTO. If the approval of Parent is not received before such time as Seller would have to send such response in order for it to be timely, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of Parent. (d) Within two (2) Business Days from the date hereof, Seller will provide Parent with a current listing of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions Governmental Bodies required to be taken in order to maintain such Patents consummate the transactions contemplated by this Agreement and Trademarks as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING")Ancillary Agreements.

Conduct Pending Closing. From and after the date hereof until the earlier of the Closing or the termination of this Agreement pursuant to ARTICLE 8, each of the Sellers shall, and shall cause each Entity to (unless otherwise consented to in writing by the Purchasers): (a) During not sell, lease, license or otherwise dispose of any assets with a book value in excess of $50,000 in the Pre-Closing Period: (i) Seller shall conduct its businesses and operations in compliance in all material respects with all applicable Law (including the WARN Act) and with the requirements of all Specified Contractsaggregate; (iib) Seller shall provide full cooperation and shall take whatever actions necessary to effect the not issue, sell or in any way transfer as any Equity Interests of the Closing Date of all of Seller's Documentation and Foreign Documentation Entities or issue or sell any securities convertible into, exercisable or exchangeable for or options or warrants to Acquisition Subpurchase or rights to subscribe for, any such Equity Interests; (iiic) Seller shall keep in full forcenot change the number of authorized shares of the Equity Interests of the Entities or reclassify, combine, split, subdivide or redeem or otherwise repurchase any of such Equity Interests, or renew at appropriate levels issue, deliver, pledge or encumber any additional Equity Interests of coverage upon expirationthe Entities or other securities equivalent to, applicable insurance policiesor exchangeable for, Equity Interests of the Entities or enter into any Contract to do any of the foregoing; (ivd) not incur or issue any securities evidencing any Funded Indebtedness or enter into any operating leases (other than Funded Indebtedness of a Seller will close all outstanding Product complaints received for which no Entity (or its assets) is liable or obligated (whether contractually, by applicable Law, as a guarantor or through the incurrence or grant of any Encumbrances), Funded Indebtedness related to money advanced from Sellers or GK Finance to an Entity on a basis consistent with past practice and in the ordinary course of business, provided that the amounts so advanced are repaid prior to the Closing Date, provided that if such complaints require return Funded Indebtedness or operating leases outstanding on the date hereof and disclosed on any Schedules hereunder), or amend, modify or agree to a waiver of the Product terms of any Funded Indebtedness or operating leases (including, without limitation increasing any commitments to extend credit thereunder); (e) not enter into any Contract with aggregate payments which could exceed $50,000 (except for any Contract related to any Employee Benefit Plan of the Parent or any Subsidiary other than the Entities, and for which Contract neither Entity assumes or has any Liability not disclosed hereunder) or any Contract in respect of the rental of any Unit; (f) not enter into any employment agreement, or in any manner change the Person (as among the Parent and the Entities) which is the employer of the employees of the Parent and the Entities from the Person disclosed on the schedule referenced in the last sentence of SECTION 3.16(a) as such Product has not been returned at least ten employee's employer, or terminate the employment of any employees in a manner which is inconsistent with past practices or policies, or except as required by applicable Law, effect any increase in the rate or terms of compensation payable or to become payable to officers or employees of any Entity or the Parent (10) Business Days prior solely as relating to the Closing Date, Seller shall have no obligation Business) other than increases in compensation under Employee Benefit Plans which are available to close such complaints; andall employees generally; (vg) Seller shall promptly notify Parent and Acquisition Sub of not create or suffer to exist any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with Encumbrance on any of its assets or properties other than Permitted Encumbrances, Encumbrances on Equity Interests or assets of GK Finance or any assets of Subsidiaries of the transactions contemplated by Parent other than the Entities, and Encumbrances which exist on the date hereof and which have been disclosed on the Schedules to this Agreement.; (bh) During the Prenot change its tax or accounting principles, policies or practices, change any depreciation or amortization policies or rates previously adopted or write-Closing Period, Seller shall not (without the prior written consent of Parent):up inventory or any other assets; (i) (A) declare, accrue, set aside or pay any dividend on, or not make any material Tax election or compromise any material Tax Liability; (j) not make any payments to or for the benefit of GK Finance (other distribution than payments made on behalf of GK Finance and reimbursed by GK Finance on a basis consistent with past practices and in the ordinary course of business); (whether in cash, securities or other propertyk) in respect of, not amend any of its outstanding capital stock , (B) split, combine Organizational Documents or reclassify any of its outstanding capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests Contracts (other than the issuance of Seller Common Stock pursuant to the valid exercise of options to acquire Seller Common Stock outstanding as of the date of this Agreement), or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party Contracts related to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transactionEmployee Plan); (iiil) form any subsidiary or directly or indirectly acquire any equity or other interest in, or make any other investment in or capital contribution to, any other entity; (iv) except for capital expenditures relating to the Redwood City Facility that Seller reasonably believes will be reimbursed by insurance, make any single capital expenditure in excess of $25,000 or, when added to all other capital expenditures made by Seller during the Pre-Closing Period, exceed a total of $75,000; (v) except as otherwise permitted by this Section 5.02, not enter into or become bound by, or permit any of the Purchased Assets to become bound by, any material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any material Contract, in each case transaction other than in the ordinary course of business and consistent business, or any transaction which is not at arms-length with past practicesunaffiliated third Persons; (vim) acquire, lease not take or license any right or other asset from any other Person or sell or otherwise dispose of, or lease or license, any right or other asset, including without limitation, any Purchased Intellectual Property omit to any other Person, except in each case for assets acquired, leased, licensed or disposed of by Seller in the ordinary course of business and consistent with past practices; (vii) dispose of or permit to lapse any material rights to the use of any Purchased Intellectual Property, or dispose of or disclose to any Person other than Representatives of Parent and Acquisition Sub any material trade secret, formula, process or know-how related to the Business not theretofore a matter of public knowledge, except in each case in ordinary course of business and consistent with past practices; (viii) lend money to any Person, or incur or guarantee any indebtedness, including any additional borrowings under any existing lines of credit (except that Seller may make routine borrowings and advancement of expenses in the ordinary course of business and consistent with past practices); (ix) except as required to comply with applicable Law, establish, adopt or amend any Employee Benefit Plan, pay, commit to pay or accelerate the payment of any bonus or make, commit to make or accelerate any profit-sharing or similar payment to, or increase or commit to increase the amount of the wages, salary, commissions, fringe benefits, severance, insurance or other compensation or remuneration payable to, any of its directors, officers, employees or consultants; provided, however, that nothing in this Section 5.02(b)(ix) shall prevent Seller from paying (or committing to pay) consideration in the aggregate amount of Three Million Dollars ($3,000,000) pursuant to any Contracts with Business Employees relating to termination, employment, retention, change-in-control or severance; (x) other than in the ordinary course of business consistent with past practice, change any of its warranty policies in any material respect; (xi) make or rescind any material Tax election or settle or compromise any material Tax Liability of Seller; (xii) (A) commence or settle any material Proceeding, or (B) except as set forth on Schedule 3.10, pay, discharge or satisfy any material Claims, Liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise); (xiii) except as provided in Section 5.04(b) herein, adopt or enter into a , merger, consolidation or any Contract relating to an Acquisition Proposal; (xiv) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be cancelled or terminated; (xv) take any action that could be reasonably expected to which would result in any of the conditions set forth representations and warranties contained in Section 6.01 not this Agreement and the Related Documents being satisfied; (xvi) except in connection with the liquidation and dissolution of Seller after untrue on the Closing Date, enter into any material transaction or take any other material than such action outside as shall have been previously agreed to in writing by the ordinary course of business and inconsistent with past practicesparties hereto; (xviin) acquire, lease not make any material change in the manner in which such Person extends discounts or enter into credits to customers or any Contract to acquire material change in the manner or lease any Real Propertyterms by which such Person collects its accounts receivable or otherwise deals with customers; (xviiio) amend, modify, extend, or enter into any collective bargaining agreement or other Contract with any union or labor organization representing any employees of Seller; or (xix) not agree or otherwise commit to take any of the actions described in clauses set forth above; (p) promptly provide the Purchasers with at least five Business Days notice of (i) through the terms and conditions with respect to renewals of any existing Contracts to be renewed by the Entities, (xviiiii) any intention to not renew any existing Contracts and (iii) the actual nonrenewal of this Section 5.02(b).any existing Contract; (cq) Seller shall provide Parent conduct its business substantially as presently conducted and only in the ordinary course consistent with a copy ofpast practice; (r) use commercially reasonable efforts to (i) maintain its business, assets, relations with present employees, customers, suppliers, partners, licensees and substantively and timely respond on or before the Closing Date to, all outstanding Patent and Trademark actions, requests, notifications, or communications from the PTO (the "INTELLECTUAL PROPERTY COMMUNICATIONS") and, within five (5) Business Days following the receipt thereof, any similar items arising after the date hereof which, but for the fact that they arose after the date hereof, would be classified operations as an Intellectual Property Communicationongoing business and preserve its goodwill, unless in accordance with past custom and practice and (ii) to satisfy each of the deadline for such response is more than thirty (30) calendar days after the Closing Date. Any substantive response closing conditions to be made pursuant to this Section 5.02(c) shall be first delivered to Parent for its approval (which shall not be unreasonably withheld) before any such substantive response is sent to the PTO. If the approval of Parent is not received before such time as Seller would have to send such response satisfied by it set forth in order for it to be timely, Parent shall be deemed to have approved such response. Regardless of any explicit or deemed approval by Parent, under no circumstance shall a substantive response include an abandonment of the respective Intellectual Property. Seller shall not request any extension of any response deadline without the prior consent of Parent.ARTICLE 6 hereof; and (ds) Within two (2) Business Days from pay and continue to defer all accounts payable and all expenses in a manner which is consistent with past practices and in the date hereof, Seller will provide Parent with a current listing ordinary course of the Intellectual Property Communications having due dates on or before March 31, 2005. On or before January 7, 2005, Seller will provide Parent with a current listing of the Patent and Trademark due dates for any actions required to be taken in order to maintain such Patents and Trademarks as well as a list specifying the foreign patent associates handling each Patent or Trademark (the "PATENT AND TRADEMARK LISTING")business.