Common use of Interim Conduct of the Company Clause in Contracts

Interim Conduct of the Company. (a) Except as expressly permitted by this Agreement, set forth in Section 5.3 of the Company Disclosure Letter, or pursuant to the Parent's prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed, it being understood that reasonableness for this purpose will be assessed from the Parent's perspective assuming the Closing will take place in accordance with this Agreement), from and after the Agreement Date through the Effective Time, the Company shall, and shall cause each of its Subsidiaries, (i) to conduct its operations in accordance with its ordinary course of business, consistent with past practice, and (ii) use its reasonable efforts to preserve intact its business organization, keep available the services of its current officers and employees, preserve the goodwill of those having business relationships with the Company and its Subsidiaries, preserve its relationships with customers, creditors and suppliers, maintain its books, accounts and records and comply in all material respects with applicable Laws. (b) Without limiting the generality of the foregoing, except as provided in this Agreement, or in Section 5.3 of the Company Disclosure Letter, from and after the Agreement Date through the Effective Time, the Company shall not, and shall not cause or permit any of its Subsidiaries to, take any of the following actions without the prior written consent of the Parent (which consent shall not be unreasonably withheld, conditioned or delayed, it being understood that reasonableness for this purpose shall be assessed from the Parent's perspective assuming the Closing shall take place in accordance with this Agreement): (i) amend or propose to amend its certificate (or articles) of incorporation or bylaws or file any certificate of designation or similar instrument with respect to any shares of its authorized but unissued capital stock; (ii) authorize or effect any stock split, combination or reclassification of shares of its capital stock or amend any term of any outstanding security of the Company or repurchase, redeem or otherwise acquire any shares of its capital stock; (iii) declare, pay or set aside any dividend or distribution with respect to the Company Common Stock or any other of its capital stock (other than dividends payable by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), authorize for issuance or issue, sell, grant any shares of its capital stock (other than in connection with the exercise of Company Options outstanding on the Agreement Date and listed in the Company Disclosure Letter or in connection with any "Offering Period" under the Stock Purchase Plan that has commenced prior to the Agreement Date), options, warrants, commitments, subscriptions, other rights of any kind (including Company Stock Based Awards) to acquire any shares of capital stock, or any other securities exercisable or exchangeable for or convertible into shares of its capital stock, or repurchase, redeem or otherwise acquire any shares of its capital stock or any other securities exercisable or exchangeable for or convertible into shares of its capital stock; (iv) merge or consolidate with any entity or liquidate, dissolve or effect any recapitalization or reorganization in any form or create any new Subsidiary; (v) sell, lease, license, pledge, encumber or otherwise dispose of any assets or any interests (including any shares of the capital stock of any of the Subsidiaries) that are material to the Company and its Subsidiaries, taken as a whole, other than assets used, consumed, replaced or sold in the ordinary course of business, consistent with past practice; (vi) acquire (whether by purchase of assets, purchase of stock, merger or otherwise) (A) any assets (including any equity interests) other than in the ordinary course of business or (B) any equity interest of any Person or any business or division of any business, or enter into any joint venture, partnership agreement, joint development agreement, strategic alliance agreement or other similar agreement (other than teaming or other similar agreements entered into by the Company and/or its Subsidiaries in the ordinary course of business, consistent with past practice); (vii) create, incur, assume or otherwise become liable for any indebtedness for borrowed money, or guarantee any such indebtedness; issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or its Subsidiaries; guarantee any debt securities of others; enter into any "keep well" or other contract to maintain any financial statement condition of any Person other than a wholly-owned Subsidiary or enter into any arrangement having the economic effect of the foregoing, other than indebtedness existing as of the Agreement Date, borrowings under existing credit lines or any of the foregoing created, incurred or assumed in the ordinary course of business, consistent with past practice, and intercompany indebtedness among the Company and its wholly-owned Subsidiaries; (viii) except as required as a result of changes in Law, GAAP or Regulation S-X of the Exchange Act, change any of the accounting principles or practices used by it as of September 30, 2005 that would reasonably be expected to materially affect the assets, liabilities or results of operation of the Company or any of its Subsidiaries; (ix) make or change any material Tax election, settle or compromise any material Tax liability, change in any material respect any accounting method in respect of Taxes, file any amendment to a material Tax Return, enter into any closing agreement, settle any material claim or material assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, except, in each case, in the ordinary course of business consistent with past practice; (x) except as required under the terms of any employment-related agreement in effect on the Agreement Date, increase the compensation payable or to become payable to any director, officer or employee (other than increases in cash compensation in the ordinary course of business, consistent with past practice, it being understood that the Company's annual increases of salaries and setting of bonus targets which shall be approved in February 2006 and the Company's approval of 2005 bonuses which shall occur in February 2006, shall not be deemed a violation of this provision if such action results in salaries, 2005 bonuses and 2006 bonus targets that are consistent with the Company's past practices in the aggregate) or increase any bonus, insurance, severance, pension or other benefit plan, payment or arrangement made to, for or with any such directors, officers or employees, or grant any severance or termination pay to any executive officer or director, or to any other employee except payments made (1) in connection with the termination of employees who are not executive officers in amounts consistent with its policies and past practice or (2) pursuant to written agreements listed on Section 5.3(b)(x) of the Company Disclosure Letter; (xi) make any capital expenditure, capital addition or capital improvement in amounts exceeding $1,000,000 in any individual occurrence; (A) enter into any contract, agreement or commitment of a character that is, or would reasonably be expected to be, material to the Company and its Subsidiaries taken as whole, except that the Company may enter into any contract, agreement or commitment in the ordinary course of business consistent with past practice or (B) terminate, renew or amend in any material respect any contract, agreement or commitment that is, or would reasonably be expected to be, material to the Company and its Subsidiaries taken as a whole, except for terminations, renewals, or amendments of contracts in the ordinary course of business consistent with past practice; (xiii) waive, release or assign any material rights, claims or benefits of the Company or any Subsidiary under any Company Material Agreement; (xiv) enter into any Government Contract or submit any bid for a Government Contract that would, under the federal rules covering Organizational Conflicts of Interest, as that term is used in Federal Acquisition Regulation Subpart 9.5, limit the Parent, the Surviving Corporation or any of their respective Subsidiaries from engaging in any line of business, competing with any Person or selling any product or service; (xv) engage in any "reportable transaction," including any "listed transaction," within the meaning of Code Section 6011 or any other applicable federal Law including any Internal Revenue Service ruling, procedure, notice or other pronouncement; (xvi) waive or release any rights that are material to the Company and its Subsidiaries, taken as a whole, or pay, discharge or satisfy any claims, liabilities or obligations that are, or would reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole, before the same come due in accordance with their terms, except in either case other than the payment, discharge and satisfaction in the ordinary course of business of liabilities reflected on or reserved for in the Financial Statements of the Company included in the most recent Filed SEC Documents or otherwise incurred in the ordinary course of business, consistent with past practice; (xvii) settle or compromise any material pending or threatened suit, action or proceeding; or (xviii) agree, resolve or commit to do any of the foregoing.

Interim Conduct of the Company. (a) Except as expressly permitted contemplated by this Agreement, as set forth in Section 5.3 of the Company Disclosure Letter, as required by law or pursuant to by the Parent's prior written consent (terms of any contract in effect on the date of this Agreement or as the Parent Corporation may approve, which consent shall approval will not be unreasonably withheld, conditioned or delayed, it being understood that reasonableness for this purpose will be assessed from the Parent's perspective assuming the Closing will take place in accordance with this Agreement), from and after the date of this Agreement Date through the Effective TimeClosing Date, the Company shallwill, and shall will cause each of its SubsidiariesSubsidiaries to, (i) to conduct its operations in accordance with its ordinary course of business, consistent with past practice, and (ii) use its reasonable efforts to preserve intact its business organization, keep available the services of its current officers and employees, preserve the goodwill of those having business relationships in accordance with the Company and its Subsidiaries, preserve its relationships with customers, creditors and suppliers, maintain its books, accounts and records and comply in all material respects with applicable Laws. (b) Without limiting the generality of the foregoing, except as provided in this Agreement, or in Section 5.3 of the Company Disclosure Letter, from and after the Agreement Date through the Effective Time, the Company shall such covenant will not, and shall will not cause or permit any of its Subsidiaries to, take any of the following actions without the prior written consent of the Parent (which consent shall not be unreasonably withheld, conditioned or delayed, it being understood that reasonableness for this purpose shall be assessed from the Parent's perspective assuming the Closing shall take place in accordance with this Agreement):: (ia) amend or propose to amend its certificate (or articles) of incorporation charter or bylaws or file any certificate of designation or similar instrument with respect to any shares of its authorized but unissued capital stock; (iib) authorize or effect any stock split, split or combination or reclassification of shares of its capital stock or amend any term of any outstanding security of the Company or repurchase, redeem or otherwise acquire any shares of its capital stock; (iiic) declare, declare or pay or set aside any dividend or distribution with respect to the Company Common Stock or any other of its capital stock (other than dividends payable by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), issue or authorize for the issuance or issue, sell, grant of any shares of its capital stock (other than in connection with the exercise of Company currently outstanding Stock Options outstanding on the Agreement Date and listed any other Stock Options issued in the Company Disclosure Letter or in connection accordance with any "Offering Period" under the Stock Purchase Plan that has commenced prior to the Agreement Date), options, warrants, commitments, subscriptions, other rights of any kind (including Company Stock Based Awardsthis Agreement) to acquire any shares of capital stock, or any other securities exercisable or exchangeable for or convertible into shares of its capital stock, or repurchase, redeem or otherwise acquire for value any shares of its capital stock or any other securities exercisable or exchangeable for or convertible into shares of its capital stock; (ivd) merge or consolidate with any entity or liquidate, dissolve or effect any recapitalization or reorganization in any form or create any new Subsidiaryentity; (ve) sell, lease, license, pledge, encumber lease or otherwise dispose of any assets or any interests (of its capital assets, including any shares of the capital stock of any of the Subsidiaries) that are material to the Company and its Subsidiaries, taken as a whole, other than sales, leases or other dispositions of machinery, equipment, tools, vehicles and other operating assets used, consumed, replaced or sold no longer required in its operations made in the ordinary course of business, consistent with past practice; (vif) liquidate, dissolve or effect any recapitalization or reorganization in any form; (g) acquire any interest in any business (whether by purchase of assets, purchase of stock, merger or otherwise) (A) any assets (including any equity interests) other than in the ordinary course of business or (B) any equity interest of any Person or any business or division of any business, or enter into any joint venture, partnership agreement, joint development agreement, strategic alliance agreement or other similar agreement (other than teaming or other similar agreements entered into by the Company and/or its Subsidiaries in the ordinary course of business, consistent with past practice); (viih) create, incur, assume or otherwise become liable for suffer to exist any indebtedness for borrowed money, or guarantee any such indebtedness; issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or its Subsidiaries; guarantee any debt securities of others; enter into any "keep well" or other contract to maintain any financial statement condition of any Person other than a wholly-owned Subsidiary or enter into any arrangement having the economic effect of the foregoingmoney (including capital lease obligations), other than indebtedness existing as of the Agreement Datedate of this Agreement, borrowings under existing credit lines or any of the foregoing created, incurred or assumed in the ordinary course of business, consistent with past practice, and intercompany indebtedness among the Company and its wholly-owned SubsidiariesSubsidiaries arising in the ordinary course of business, consistent with past practice; (viiii) create, incur, assume or suffer to exist any Lien (other than Permitted Liens) affecting any of its material assets or properties; (j) except as required as a the result of changes in Law, GAAP or Regulation S-X of the Exchange ActUnited States generally accepted accounting principles, change any of the accounting principles or practices used by it as of September 30, 2005 that would reasonably be expected to materially affect the assets, liabilities or results of operation of the Company or any of its Subsidiaries; (ix) make or change any material Tax election, settle or compromise any material Tax liability, change revalue in any material respect any accounting method in respect of Taxesits assets or properties, file any amendment to a material Tax Return, enter into any closing agreement, settle any material claim or material assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, except, in each case, in the ordinary course of business consistent with past practice; (x) except as required under the terms of any employment-related agreement in effect on the Agreement Date, increase the compensation payable or to become payable to any director, officer or employee (other than increases in cash compensation write-downs of inventory or accounts receivable in the ordinary course of business, consistent with past practice, it being understood that ; (k) except as required under the Company's annual increases terms of salaries and setting any collective bargaining agreement in effect as of bonus targets which shall be approved in February 2006 and the Company's approval of 2005 bonuses which shall occur in February 2006, shall not be deemed a violation date of this provision if such action results in salariesAgreement, 2005 bonuses and 2006 bonus targets that are consistent with the Company's past practices grant any general or uniform increase in the aggregaterates of pay of its employees or grant any general or uniform increase in the benefits under any bonus or pension plan or other contract or commitment; (l) except for any increase required under the terms of any collective bargaining agreement or consulting or employment agreement in effect on the date of this Agreement, increase the compensation payable or to become payable to officers and salaried employees with a base salary in excess of $75,000 per year or increase any bonus, insurance, severance, pension or other benefit plan, payment or arrangement made to, for or with any such directors, officers or salaried employees, or grant any severance or termination pay to any executive officer or director, or to any other employee except payments made (1) in connection with the termination of employees who are not executive officers in amounts consistent with its policies and past practice or (2) pursuant to written agreements listed on Section 5.3(b)(x) of the Company Disclosure Letter; (xi) make any capital expenditure, capital addition or capital improvement in amounts exceeding $1,000,000 in any individual occurrence; (Am) enter into any contract, agreement material contract or commitment of a character that is, or would reasonably be expected to be, engage in any material to transaction with any affiliated person or entity (other than the Company and or its Subsidiaries taken as whole, except that the Company may Subsidiaries) or enter into any contract, agreement material contract or commitment in the ordinary course of business consistent with past practice or (B) terminate, renew or amend engage in any material respect transaction with any contractunaffiliated person or entity which, agreement or commitment that isto the Company's knowledge, or would is reasonably be expected likely to be, result in a material financial loss to the Company and its Subsidiaries taken as a whole, except for terminations, renewals, or amendments of contracts in the ordinary course of business consistent with past practice; (xiiin) waive, release or assign make any material rights, claims Tax election or benefits of the Company settle or compromise any Subsidiary under any Company Material Agreementmaterial Tax liability; (xivo) enter into any Government Contract or submit any bid for a Government Contract that would, under the federal rules covering Organizational Conflicts of Interest, as that term is used in Federal Acquisition Regulation Subpart 9.5, limit the Parent, the Surviving Corporation or any of their respective Subsidiaries from engaging in any line of business, competing with any Person or selling any product or service; (xv) engage in any "reportable transaction," including any "listed transaction," within the meaning of Code Section 6011 or any other applicable federal Law including any Internal Revenue Service ruling, procedure, notice or other pronouncement; (xvi) waive or release any rights that are material to the Company and its Subsidiaries, taken as a whole, or pay, discharge or satisfy any claims, liabilities or obligations that are, or would reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole, before the same come due in accordance with their terms, except in either case other than the payment, discharge and satisfaction in the ordinary course of business of liabilities reflected on or reserved for in the Financial Statements consolidated financial statements of the Company included in the most recent Filed SEC Documents or otherwise incurred in the ordinary course of business, consistent with past practice; (xviip) settle or compromise any material pending or threatened suit, action or proceeding; or (xviiiq) agree, resolve or commit to do any of the foregoing.

Interim Conduct of the Company. (a) Except as expressly permitted by this Agreement, set forth in Section 5.3 During the period from the date hereof and continuing until the earlier of the Company Disclosure Letter, or termination of this Agreement pursuant to the Parent's prior written consent (which consent shall not be unreasonably withheld, conditioned its terms or delayed, it being understood that reasonableness for this purpose will be assessed from the Parent's perspective assuming the Closing will take place in accordance with this Agreement), from and after the Agreement Date through the Effective Time, except to the extent that Parent consents in writing, the Company shallwill, and shall will cause each of Company Subsidiary to use all reasonable efforts to carry on its Subsidiaries, (i) to conduct its operations in accordance with its ordinary course of business, consistent in all respects material to the Company and the Company Subsidiaries taken as a whole, in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and in compliance in all material respects with past practiceall applicable laws and regulations, pay its debts and Taxes when due, subject to good faith disputes over such debts or Taxes, pay or perform other material obligations when due, and (ii) use its reasonable best efforts to preserve intact its present business organization, keep available the services of its current officers and employees, preserve the goodwill of those having business relationships with the Company and its Subsidiaries, preserve its relationships with customers, creditors and suppliers, maintain its books, accounts and records and comply in all material respects with applicable Laws. (b) Without In addition, without limiting the generality of the foregoingSection 6.1(a), except as permitted or contemplated by the terms of this Agreement or as provided in this Agreement, or in Section 5.3 6.1(b) of the Company Disclosure LetterSchedule, from and after the Agreement Date through the Effective Time, the Company shall not, and shall not cause or permit any of its Subsidiaries to, take any of the following actions without the prior written consent of the Parent (which consent shall not be unreasonably withheld, conditioned delayed or delayedconditioned), it being understood that reasonableness for this purpose shall be assessed during the period from the Parent's perspective assuming date hereof and continuing until the Closing shall take place in accordance with earlier of the termination of this Agreement):Agreement pursuant to its terms or the Company Merger Effective Time, the Company will not do, and will not permit any Company Subsidiary to do, any of the following: (i) amend its articles or propose to amend its certificate (or articles) of incorporation or bylaws or file any certificate of designation or similar instrument with respect to any shares of its authorized but unissued capital stockorganizational documents; (ii) authorize (A) issue, sell, transfer, pledge, dispose of or effect encumber any stock splitshares of, combination or reclassification securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock or amend any term of any outstanding security class of the Company or repurchaseany Company Subsidiary, redeem other than the issuance, delivery and/or sale of (1) shares of the Company Common Stock pursuant to the exercise of stock options or warrants therefor outstanding as of the date hereof, (2) stock options or other stock-based awards of or to acquire shares of the Company Common Stock granted under the Company Option Plans that are existing as of the date hereof, in the ordinary course of business in connection with periodic compensation reviews or ordinary course promotions or to new hires and which options or stock-based awards have a vesting schedule no more favorable than the Company's customary vesting schedule (it being understood that any such stock options granted after the date hereof will not vest prior to Closing, and that no stock options will be granted following the date of effectiveness the Registration Statement) and do not accelerate, or become subject to acceleration, directly or indirectly, as a result of the approval or consummation of the Company Merger (other than, in accordance with the terms of such plan or pursuant to a change of control agreement to which the optionee is already a party) in no event to exceed an aggregate 3,000,000 shares of Company Common Stock, (B) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to its capital stock, or (C) redeem, purchase or otherwise acquire any shares of any class or series of its capital stock; (iii) declare, pay or set aside any dividend or distribution with respect to the Company Common Stock or any other instrument or security which consists of its capital stock (other than dividends payable by or includes a wholly-owned Subsidiary of the Company right to the Company or another wholly-owned Subsidiary)acquire such shares, authorize for issuance or issue, sell, grant any shares of its capital stock (other than except in connection with the exercise of repurchase rights or rights of first refusal in favor of the Company with respect to shares of the Company Common Stock issued upon exercise of Company Stock Options outstanding on granted under the Agreement Date and listed Company Option Plans; (iii) (A) incur any indebtedness for borrowed money or guarantee any such indebtedness of any other Person other than (1) in the Company Disclosure Letter or ordinary course of business, (2) in connection with the financing of ordinary course trade payables consistent with past practices, or (3) loans, investments or guarantees by the Company or any of the Company Subsidiaries to, in or of the Company or any Company Subsidiary made in the ordinary course of business other than as contemplated by the operating plan of the Company for the fiscal year ending July 2, 2004, which has been approved by the Company's board of directors and a copy of which has been provided to Parent (the "Offering Period" under the Stock Purchase Plan that has commenced prior to the Agreement DateCompany 2004 Plan"), options(B) make any loans, warrants, commitments, subscriptions, other rights of any kind (including Company Stock Based Awards) to acquire any shares of advances or capital stockcontributions to, or investments in, any other securities exercisable Person (other than a Person which is a Company Subsidiary) other than customary loans or exchangeable for or convertible into shares advances to employees in each case in the ordinary course of its capital stockbusiness consistent with past practices, or repurchase, redeem (C) cancel any debts or otherwise acquire waive any shares material claims or rights other than customer credits in the ordinary course of its capital stock or any other securities exercisable or exchangeable for or convertible into shares of its capital stockbusiness; (iv) merge except as required by Legal Requirements or consolidate pursuant to agreements or written policies in existence as of the date hereof or as contemplated by the Company 2004 Plan, (A) make any change in the compensation or benefits payable or to become payable to (y) any of its employees, agents or consultants or to Persons providing management services, which changes constitute a net aggregate change, or (z) its officers who report directly to the Chief Executive Officer of the Company, or members of the board of directors of the Company, (B) enter into or amend any employment, severance, consulting, termination or other agreement or employee benefit plan or make any loans to (y) any of its employees, affiliates, agents or consultants, which changes constitute a net aggregate change, or (z) its officers who report directly to the Chief Executive Officer of the Company, or members of the Company's board of directors, (C) or make any change in its existing borrowing or lending arrangements for or on behalf of any of such employees, agents, consultants or Persons providing management services, which changes constitute a net aggregate change, or its officers who report to the Chief Executive Officer of the Company and members of the board of directors of the Company, individually, pursuant to an employee benefit plan or otherwise, (D) pay or make any accrual or arrangement for payment of any pension, retirement allowance or other employee benefit pursuant to any existing plan, agreement or arrangement to any officer, director, employee or affiliate or pay or agree to pay or make any accrual or arrangement for payment to any officers, directors, employees or affiliates of any amount relating to unused vacation days, except payments and accruals made in the ordinary course of business consistent with past practices, (E) offer, grant or issue any entity stock options other than in a manner consistent with Section 6.1(b)(ii)(A)(2) or liquidatetake any action to accelerate, dissolve amend or effect change the period of vesting or exercisability of options or restricted stock, or reprice options granted under any recapitalization employee, consultant, director or reorganization other stock plans or authorize cash payments in exchange for any options granted under any of such plans, (F) hire or terminate any officer who reports to the Chief Executive Officer of the Company (other than terminations for cause) or encourage any officer who would report or does report to the Chief Executive Officer of the Company to resign, or increase the number of employees in the aggregate in a manner inconsistent with the Company 2004 Plan, or (G) amend in any form material respect any such existing plan, agreement or create any new Subsidiaryarrangement in a manner inconsistent with the foregoing; (v) sellpermit to be cancelled or terminated, leasewithout reasonable efforts to maintain coverage, licenseor cancel or terminate any insurance policy naming it as a beneficiary or loss payee, pledgeto be cancelled or terminated any insurance policy naming it as a beneficiary or payee; (A) materially modify, encumber amend or otherwise dispose of any assets or any interests (including any shares of the capital stock of terminate any of the Subsidiaries) Identified Contracts that are material to the business of the Company and its the Company Subsidiaries, taken as a whole, other than (B) waive, release or assign any material rights on claims under any of the Company Identified Contracts that are material to the business of the Company and the Company Subsidiaries, taken as a whole, (C) enter into any material commitment or transaction including entering into any material purchase, sale or lease of assets usedor real estate, consumedor (D) enter into any agreement, replaced or sold in the ordinary course of business, consistent with past practice; (vi) acquire (whether by purchase of assets, purchase of stock, merger or otherwise) (A) any assets (including any equity interests) material strategic alliance, material joint development or joint marketing agreement, any borrowing, capital expenditure or purchase, sale or material lease of assets or real estate, other than in the ordinary course of business or consistent with past practices, (BE) any equity interest of any Person or any business or division of any business, or enter into any joint ventureagreement pursuant to which Parent or the Surviving Corporation or any of their respective Subsidiaries, partnership agreementor, joint development agreement, strategic alliance agreement or other similar agreement (other than teaming or other similar agreements entered into by the Company and/or its Subsidiaries in the ordinary course of business, business consistent with past practice)practices, the Company or any Company Subsidiary will be subject to any material exclusivity, non-compete or other similar restriction on their respective businesses following the Closing; (vii) create, incur, assume or otherwise become liable for any indebtedness for borrowed money, or guarantee any such indebtedness; issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or its Subsidiaries; guarantee any debt securities of others; (A) enter into any "keep well" agreement or other contract assignment which has the effect of transferring or licensing to maintain any financial statement condition Person or entity or otherwise extending or modifying in any material respect the rights of any Person other than a wholly-owned Subsidiary or enter into any arrangement having to use material Company Intellectual Property Rights (including the economic effect of the foregoingassociated financial terms), other than indebtedness existing as of the Agreement Date, borrowings under existing credit lines or any of the foregoing created, incurred or assumed non-exclusive licenses in the ordinary course of business, business consistent with past practicepractices; (B) disclose to any Person other than Company employees and Representatives of Parent any material Trade Secret except pursuant to non-disclosure agreements or in the ordinary course of business consistent with past practices; (C) transfer, and intercompany indebtedness among modify or terminate any agreement pursuant to which the Company has licensed Intellectual Property Rights material to the conduct of the business of the Company from any Person other than in the ordinary course of business consistent with past practices; and its wholly-owned Subsidiaries(D) not disclose any material source code to any third party except in the ordinary course of business consistent with past practices; (viii) except as fail to make in a timely manner any filings with the SEC required as a result of changes in Law, GAAP under the Securities Act or Regulation S-X of the Exchange Act, change any of Act or the accounting principles or practices used by it as of September 30, 2005 that would reasonably be expected to materially affect the assets, liabilities or results of operation of the Company or any of its Subsidiariesrules and regulations promulgated thereunder; (ixA) make or change any material Tax election, settle or compromise any material Tax liability, change in any material respect method of accounting, method of accounting principles or practice, except for such change required by reason of a concurrent change in GAAP or compliance with the applicable requirements of the rules and regulations promulgated by the SEC, (B) make any Tax election or change any Tax election already made, adopt any Tax accounting method in respect of Taxesmethod, file except for such changes required by applicable law, rule or regulation, change any amendment to a material Tax Returnaccounting method, except for such changes required by applicable law, rule or regulation, enter into any closing agreement, agreement or settle any material claim or assessment relating to Taxes other than settlements or assessments the result of which would not be material assessment in respect of Taxesto the Company and the Company Subsidiaries, taken as a whole, or consent to any extension claim or assessment relating to Taxes or any waiver of the limitation period applicable to statute of limitations for any such claim or assessment assessment, or (C) file the 2003 United States federal income Tax return for the taxable yeax xxxxxx Xxxx 00, 2003 without Parent's consent, which shall not be unreasonably withheld, or (D) revalue any of its material assets, except as required by GAAP, applicable accounting requirements or the published rules and regulations of the SEC with respect thereto in respect effect during the periods involved other than in the ordinary course of Taxesbusiness consistent with past practices; (x) pay, exceptdischarge or satisfy any material claims, in each casematerial liabilities or material obligations (whether absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction of any such claims, liabilities or obligations, in the ordinary course of business consistent with past practice; (x) except as required under the terms of any employment-related agreement in effect on the Agreement Date, increase the compensation payable or to become payable to any director, officer or employee (other than increases in cash compensation in the ordinary course of business, consistent with past practice, it being understood that the Company's annual increases of salaries and setting of bonus targets which shall be approved in February 2006 and the Company's approval of 2005 bonuses which shall occur in February 2006, shall not be deemed a violation of this provision if such action results in salaries, 2005 bonuses and 2006 bonus targets that are consistent with the Company's past practices in the aggregate) or increase any bonus, insurance, severance, pension or other benefit plan, payment or arrangement made to, for or with any such directors, officers or employeespractices, or grant any severance of claims, liabilities or termination pay to any executive officer obligations reflected or directorreserved against in, or to any other employee except payments made contemplated by, the consolidated financial statements (1) in connection with or the termination of employees who are not executive officers in amounts consistent with its policies and past practice or (2) pursuant to written agreements listed on Section 5.3(b)(x) of the Company Disclosure Letter; (xi) make any capital expenditure, capital addition or capital improvement in amounts exceeding $1,000,000 in any individual occurrencenotes thereto); (A) enter into any contractadopt a plan of complete or partial liquidation, agreement dissolution, merger, consolidation, restructuring, recapitalization or commitment other reorganization (other than the Mergers) other than liquidations, dissolutions, mergers, consolidations, restructurings, recapitalizations or other reorganizations of Company Subsidiaries that would not have a character that is, or would reasonably be expected to be, material to effect on the business of the Company and its Subsidiaries the Company Subsidiaries, taken as a whole, (B) acquire or agree to acquire by purchasing any equity interest in or a material portion or all of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or, except that the Company may enter into any contract, agreement or commitment in the ordinary course of business consistent with past practice practices, otherwise acquire or (B) terminateagree to acquire any assets which are material, renew individually or amend in any material respect any contractthe aggregate, agreement or commitment that is, or would reasonably be expected to be, material to the Company and its Subsidiaries the Company Subsidiaries, taken as a whole, except for terminationsor (C) sell, renewalstransfer, lease, mortgage, pledge, license, encumber, or amendments otherwise dispose of, any of contracts its properties or assets that are material, individually or in the aggregate, to the Company and the Company Subsidiaries, taken as a whole; (xii) take any action that would or is reasonably likely to result in any of the conditions to the Mergers set forth in Article IX not being satisfied, or would make many representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Company Merger Effective Time, or that would impair the ability of the Company to consummate the Company Merger in accordance with the terms hereof or materially delay such consummation; (A) commence any litigation (except actions commenced in the ordinary course of business against third parties) or (B) except in the ordinary course of business consistent with past practice; (xiii) waivepractices or as required by law, release judicial order or assign decree or settle any material rightslitigation except in the ordinary course of business, claims or benefits it being understood that any settlement of litigation involving the payment by the Company or any Company Subsidiary under any Company Material Agreement;of an amount in excess of $350,000 is not in the ordinary course of business; or (xiv) enter into any Government Contract written or submit any bid for a Government Contract that wouldoral agreement, under the federal rules covering Organizational Conflicts of Interestcontract, as that term is used in Federal Acquisition Regulation Subpart 9.5, limit the Parent, the Surviving Corporation commitment or arrangement to take any of their respective Subsidiaries from engaging the actions described in any line of business, competing with any Person or selling any product or service;(i) through (xiv) above. (xvc) engage in During the period commencing on the date hereof and continuing until the earlier of the Effective Time or termination of this Agreement, HoldCo will not conduct any "reportable transaction," including any "listed transaction," within the meaning of Code Section 6011 or any other applicable federal Law including any Internal Revenue Service ruling, procedure, notice or other pronouncement; (xvi) waive or release any rights that are material to the Company and its Subsidiaries, taken as a whole, or pay, discharge or satisfy any claims, liabilities or obligations that are, or would reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole, before the same come due in accordance with their terms, except in either case business activities other than the payment, discharge and satisfaction administrative activities in the ordinary course of business of liabilities reflected on or reserved for activities in connection with or reasonably related to the Financial Statements of Mergers and the Company included in other transactions contemplated by the most recent Filed SEC Documents or otherwise incurred in the ordinary course of business, consistent with past practice; (xvii) settle or compromise any material pending or threatened suit, action or proceeding; or (xviii) agree, resolve or commit to do any of the foregoingMerger Agreement.

Interim Conduct of the Company. (a) Except as expressly permitted contemplated by this Agreement, as set forth in Section 5.3 of the Company Disclosure Letter, as required by law or pursuant to by the Parent's prior written consent (terms of any contract in effect on the date of this Agreement or as the Parent Corporation may approve, which consent shall approval will not be unreasonably withheld, conditioned withheld or delayed, it being understood that reasonableness for this purpose will be assessed from the Parent's perspective assuming the Closing will take place in accordance with this Agreement), from and after the date of this Agreement Date through the Effective TimeClosing Date, the Company shallwill, and shall will cause each of its SubsidiariesSubsidiaries to, (i) to conduct its operations in accordance with its ordinary course of business, consistent with past practice, and (ii) use its reasonable efforts to preserve intact its business organization, keep available the services of its current officers and employees, preserve the goodwill of those having business relationships in accordance with the Company and its Subsidiaries, preserve its relationships with customers, creditors and suppliers, maintain its books, accounts and records and comply in all material respects with applicable Laws. (b) Without limiting the generality of the foregoing, except as provided in this Agreement, or in Section 5.3 of the Company Disclosure Letter, from and after the Agreement Date through the Effective Time, the Company shall such covenant will not, and shall will not cause or permit any of its Subsidiaries to, take any of the following actions without the prior written consent of the Parent (which consent shall not be unreasonably withheld, conditioned or delayed, it being understood that reasonableness for this purpose shall be assessed from the Parent's perspective assuming the Closing shall take place in accordance with this Agreement):: (ia) amend or propose to amend its certificate (or articles) articles of incorporation or bylaws or file any certificate of designation or similar instrument with respect to any shares of its authorized but unissued capital stock; (iib) authorize or effect any stock split, split or combination or reclassification of shares of its capital stock or amend any term of any outstanding security of the Company or repurchase, redeem or otherwise acquire any shares of its capital stock; (iiic) declare, declare or pay or set aside any dividend or distribution with respect to the Company Common Stock or any other of its capital stock (other than the regular quarterly dividend of $0.075 per share of Company Common Stock and dividends payable by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), issue or authorize for the issuance or issue, sell, grant of any shares of its capital stock (other than in connection with the exercise of Company currently outstanding Stock Options outstanding on the Agreement Date and listed in the Company Disclosure Letter or in connection with any "Offering Period" under the Stock Purchase Plan that has commenced prior to the Agreement Date), options, warrants, commitments, subscriptions, other rights of any kind (including Company Stock Based AwardsLetter) to acquire any shares of capital stock, or any other securities exercisable or exchangeable for or convertible into shares of its capital stock, or repurchase, redeem or otherwise acquire for value any shares of its capital stock or any other securities exercisable or exchangeable for or convertible into shares of its capital stock; (ivd) merge or consolidate with any entity or liquidate, dissolve or effect any recapitalization or reorganization in any form or create any new Subsidiaryentity; (ve) sell, lease, license, pledge, encumber lease or otherwise dispose of any assets or any interests (of its capital assets, including any shares of the capital stock of any of the Subsidiaries) that are material to the Company and its Subsidiaries, taken as a whole, other than sales, leases or other dispositions of machinery, equipment, tools, vehicles and other operating assets used, consumed, replaced or sold no longer required in its operations made in the ordinary course of business, consistent with past practice; (vif) liquidate, dissolve or effect any recapitalization or reorganization in any form; (g) acquire any interest in any business (whether by purchase of assets, purchase of stock, merger or otherwise) (A) any assets (including any equity interests) other than in the ordinary course of business or (B) any equity interest of any Person or any business or division of any business, or enter into any joint venture, partnership agreement, joint development agreement, strategic alliance agreement or other similar agreement (other than teaming or other similar agreements entered into by the Company and/or its Subsidiaries in the ordinary course of business, consistent with past practice); (viih) create, incur, assume or otherwise become liable for suffer to exist any indebtedness for borrowed money, or guarantee any such indebtedness; issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or its Subsidiaries; guarantee any debt securities of others; enter into any "keep well" or other contract to maintain any financial statement condition of any Person other than a wholly-owned Subsidiary or enter into any arrangement having the economic effect of the foregoingmoney (including capital lease obligations), other than indebtedness existing as of the Agreement Datedate of this Agreement, borrowings under existing credit lines or any of the foregoing created, incurred or assumed in the ordinary course of business, consistent with past practice, and intercompany indebtedness among the Company and its wholly-owned SubsidiariesSubsidiaries arising in the ordinary course of business, consistent with past practice; (viiii) create, incur, assume or suffer to exist any Lien (other than Permitted Liens) affecting any of its material assets or properties; (j) except as required as a the result of changes in Law, GAAP or Regulation S-X of the Exchange ActUnited States generally accepted accounting principles, change any of the accounting principles or practices used by it as of September 30, 2005 that would reasonably be expected to materially affect the assets, liabilities or results of operation of the Company or any of its Subsidiaries; (ix) make or change any material Tax election, settle or compromise any material Tax liability, change revalue in any material respect any accounting method in respect of Taxesits assets or properties, file any amendment to a material Tax Return, enter into any closing agreement, settle any material claim or material assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, except, in each case, in the ordinary course of business consistent with past practice; (x) except as required under the terms of any employment-related agreement in effect on the Agreement Date, increase the compensation payable or to become payable to any director, officer or employee (other than increases in cash compensation write-downs of inventory or accounts receivable in the ordinary course of business, consistent with past practice, it being understood that ; (k) except as required under the Company's annual increases terms of salaries and setting any collective bargaining agreement in effect as of bonus targets which shall be approved in February 2006 and the Company's approval of 2005 bonuses which shall occur in February 2006, shall not be deemed a violation date of this provision if such action results in salariesAgreement or as required by applicable law, 2005 bonuses and 2006 bonus targets that are consistent with the Company's past practices grant any general or uniform increase in the aggregaterates of pay of its employees or grant any increase in the benefits under any bonus or employee benefit plan or other arrangement, contract or commitment; (l) except for any increase required under the terms of any collective bargaining agreement or consulting, executive or employment agreement in effect on the date of this Agreement or as required by applicable law, increase the compensation payable or to become payable to officers and salaried employees with a base salary in excess of $100,000 per year or increase any bonus, insurance, severance, pension or other benefit plan, payment or arrangement made to, for or with any such directors, officers or salaried employees, or grant any severance or termination pay to any executive officer or director, or to any other employee except payments made (1) in connection with the termination of employees who are not executive officers in amounts consistent with its policies and past practice or (2) pursuant to written agreements listed on Section 5.3(b)(x) of the Company Disclosure Letter; (xi) make any capital expenditure, capital addition or capital improvement in amounts exceeding $1,000,000 in any individual occurrence; (Am) enter into any contract, agreement contract or commitment of a character that is, or would reasonably be expected to be, material to engage in any transaction with any affiliated person or entity (other than the Company and or its Subsidiaries taken as whole, except that the Company may Subsidiaries) or enter into any contract, agreement contract or commitment or engage in any transaction with any unaffiliated person or entity which, to the Company's knowledge, is reasonably likely to have a Company Material Adverse Effect; (n) make any material Tax election or settle or compromise any material Tax liability, except in the ordinary course of business consistent with past practice or (B) terminate, renew or amend in any material respect any contract, agreement or commitment that is, or would reasonably be expected to be, material to the Company and its Subsidiaries taken as a whole, except for terminations, renewals, or amendments of contracts in the ordinary course of business consistent with past practicebusiness; (xiiio) waive, release or assign any material rights, claims or benefits of the Company or any Subsidiary under any Company Material Agreement; (xiv) enter into any Government Contract or submit any bid for a Government Contract that would, under the federal rules covering Organizational Conflicts of Interest, as that term is used in Federal Acquisition Regulation Subpart 9.5, limit the Parent, the Surviving Corporation or any of their respective Subsidiaries from engaging in any line of business, competing with any Person or selling any product or service; (xv) engage in any "reportable transaction," including any "listed transaction," within the meaning of Code Section 6011 or any other applicable federal Law including any Internal Revenue Service ruling, procedure, notice or other pronouncement; (xvi) waive or release any rights that are material to the Company and its Subsidiaries, taken as a whole, or pay, discharge or satisfy any claims, liabilities or obligations that are, or would reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole, before the same come due in accordance with their terms, except in either case other than the payment, discharge and satisfaction in the ordinary course of business of liabilities reflected on or reserved for in the Financial Statements consolidated financial statements of the Company included in the most recent Filed SEC Documents or otherwise incurred in the ordinary course of business, consistent with past practice; (xviip) settle or compromise any material pending or threatened suit, action or proceeding; or (xviiiq) agree, resolve or commit to do any of the foregoing.

Interim Conduct of the Company. (a) Except as expressly permitted contemplated by this Agreement, set forth in Section 5.3 of Agreement or with the Company Disclosure Letter, or pursuant to the Parent's prior written consent of Purchaser (which consent shall not be unreasonably withheld), conditioned or delayed, it being understood that reasonableness for this purpose will be assessed during the period from the Parent's perspective assuming Effective Date of this Agreement to the Closing Closing, Seller will take place in accordance with this Agreement), from and after the Agreement Date through the Effective Time, cause the Company shall, and shall cause each of its Subsidiaries, (i) to conduct its operations Business in accordance with its ordinary course the Ordinary Course of business, consistent with past practice, Business and (ii) will use its all reasonable efforts consistent therewith to preserve intact its the Company's properties, assets and business organization, to keep available the services of its current Company's officers and employees, preserve the goodwill of those having business relationships with the Company employees and its Subsidiaries, preserve its to maintain satisfactory relationships with customers, creditors and suppliers, maintain its booksdistributors and others having commercially beneficial business relationships with Company, accounts and records and comply in all material respects with applicable Laws. (b) each case in the Ordinary Course of Business. Without limiting the generality of the foregoing, and except as otherwise provided in this Agreement, or in Section 5.3 of Seller will not permit the Company Disclosure Letter, from and after the Agreement Date through the Effective Time, the Company shall not, and shall not cause or permit any of its Subsidiaries to, to take any of the following actions actions, prior to the Closing, without the prior written consent of the Parent Purchaser: (which consent shall not be unreasonably withheld, conditioned or delayed, it being understood that reasonableness for this purpose shall be assessed from the Parent's perspective assuming the Closing shall take place in accordance with this Agreement): a) (i) amend or propose to amend its certificate (or articles) of incorporation or bylaws or file any certificate of designation or similar instrument with respect to any shares of its authorized but unissued capital stock; (ii) authorize or effect any stock split, combination or reclassification of shares of its capital stock or amend any term of any outstanding security of the Company or repurchase, redeem or otherwise acquire any shares of its capital stock; (iii) declare, pay or set aside any dividend or distribution with respect to the Company Common Stock or any other of its capital stock (other than dividends payable by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), authorize for issuance or issue, sell, grant any shares of its capital stock (other than in connection with the exercise of Company Options outstanding on the Agreement Date and listed in the Company Disclosure Letter or in connection with any "Offering Period" under the Stock Purchase Plan that has commenced prior to the Agreement Date), options, warrants, commitments, subscriptions, other rights of any kind (including Company Stock Based Awards) to acquire any shares of capital stock, or any other securities exercisable or exchangeable for or convertible into shares of its capital stock, or repurchase, redeem or otherwise acquire any shares of its capital stock or any other securities exercisable or exchangeable for or convertible into shares of its capital stock; (iv) merge or consolidate with any entity or liquidate, dissolve or effect any recapitalization or reorganization in any form or create any new Subsidiary; (v) sell, lease, license, pledge, encumber transfer or otherwise dispose of any of the Acquired Assets, (ii) mortgage or encumber any of the Acquired Assets, (iii) acquire any material assets or properties other than in the Ordinary Course of Business, or (iv) enter into any interests leases or subleases for equipment or personal property which result in lease payments by the Company in excess of One Hundred Thousand Dollars ($100,000.00) in the aggregate; (b) enter into, terminate or materially modify, any material agreements, commitments or contracts, except agreements, commitments or contracts made in the Ordinary Course of Business and not otherwise prohibited by this Section 5.3; (c) except in the Ordinary Course of Business, or with respect to capital projects disclosed on Exhibit 5.11, enter into any agreement or commitment involving an aggregate capital expenditure or commitment for any one agreement exceeding One Hundred Thousand Dollars ($100,000.00) or for all such agreements exceeding Five Hundred Thousand Dollars ($500,000.00) in the aggregate, or create, incur, or guaranty any long-term or short-term indebtedness for money borrowed; (d) enter into any new (or amend any existing) Employee Benefit Plan (other than the spin off of a portion of an Employee Benefit Plan in order to facilitate the Reorganization) or any new (or amend any existing) employment, severance, retention, change of control or consulting agreement, grant any general increase in compensation of officers or employees of the Business (including any shares such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) or grant any increase in compensation payable or to become payable to any employee of the capital stock of any of the Subsidiaries) that are material to the Company and its SubsidiariesBusiness, taken as a whole, other than assets used, consumed, replaced except in accordance with pre-existing contractual arrangements or sold in the ordinary course of business, consistent with past practice; (vie) acquire Intentionally Omitted; (whether by purchase of assets, purchase of stock, merger or otherwisef) enter into any Prepaid Revenue Contract (Aas defined in Section 3.8(i) any assets (including any equity interestsabove) other than in the ordinary course of business or (B) any equity interest of any Person or any business or division of any business, or enter into any joint ventureagreements, partnership agreementcontracts, joint development agreement, strategic alliance agreement leases or other similar agreement (other than teaming licenses for the sale of goods or other similar agreements entered into services by the Company and/or its Subsidiaries with an aggregate non-recurring revenue as reported on the Company's income statement in the ordinary course of business, consistent accordance with past practicepractices in excess of One Hundred Seventy-Five Thousand Dollars ($175,000.00); (vii) create, incur, assume or otherwise become liable for any indebtedness for borrowed money, or guarantee any such indebtedness; issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or its Subsidiaries; guarantee any debt securities of others; enter into any "keep well" or other contract to maintain any financial statement condition of any Person other than a wholly-owned Subsidiary or enter into any arrangement having the economic effect of the foregoing, other than indebtedness existing as of the Agreement Date, borrowings under existing credit lines or any of the foregoing created, incurred or assumed in the ordinary course of business, consistent with past practice, and intercompany indebtedness among the Company and its wholly-owned Subsidiaries; (viii) except as required as a result of changes in Law, GAAP or Regulation S-X of the Exchange Act, change any of the accounting principles or practices used by it as of September 30, 2005 that would reasonably be expected to materially affect the assets, liabilities or results of operation of the Company or any of its Subsidiaries; (ixg) make or change any material Tax election, settle adopt or compromise change any material method of Tax liability, change in any material respect any accounting method in respect of Taxesor Tax accounting periods, file any amendment amended Tax Returns (unless such election, accounting method or period, or amended Tax Returns relate to a material Tax ReturnIncome Taxes), enter into any closing agreement, settle any material Tax claim or assessment relating to the Company or the Subsidiaries, surrender any material assessment in respect right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment in respect of Taxesrelating to the Company or the Subsidiaries, except, in each case, in the ordinary course of business consistent with past practiceor fail to timely file all Tax Returns required to be filed and timely pay all Taxes due; (xh) except as required under after the terms Reorganization, make any change in any organizational document of any employment-related agreement in effect on the Agreement Date, increase the compensation payable or to become payable to any director, officer or employee (other than increases in cash compensation in the ordinary course of business, consistent with past practice, it being understood that the Company's annual increases of salaries and setting of bonus targets which shall be approved in February 2006 and the Company's approval of 2005 bonuses which shall occur in February 2006, shall not be deemed a violation of this provision if such action results in salaries, 2005 bonuses and 2006 bonus targets that are consistent with the Company's past practices in the aggregate) or increase ; issue any bonus, insurance, severance, pension additional membership interests or other benefit plan, payment ownership interests or arrangement made to, for or with any such directors, officers or employees, equity securities of the Company or grant any severance option, warrant or termination pay right to acquire any executive officer membership interests or directorownership interests or other equity securities or issue any security convertible into or exchangeable for such interests or securities or alter in any way any of its outstanding interests or securities or make any change in outstanding membership interests or other ownership interests or equity securities or its capitalization, whether by reason of a reclassification, recapitalization, split or to any other employee except payments made (1) in connection with the termination combination, exchange or readjustment of employees who are not executive officers in amounts consistent with its policies and past practice interest or (2) pursuant to written agreements listed on Section 5.3(b)(x) of the Company Disclosure Letter;otherwise. (xii) make redeem, retire, purchase or otherwise acquire, directly or indirectly, any capital expenditure, capital addition shares of membership interests or capital improvement in amounts exceeding $1,000,000 in any individual occurrence; (A) enter into any contract, agreement other ownership interests or commitment equity securities of a character that is, or would reasonably be expected to be, material to the Company and its Subsidiaries taken as wholeor declare, except that the Company may enter into set aside or pay any contract, agreement dividends or commitment other distribution in the ordinary course respect of business consistent with past practice or such interests (B) terminate, renew or amend in any material respect any contract, agreement or commitment that is, or would reasonably be expected other than distributions to be, material to the Company and its Subsidiaries taken as a whole, except for terminations, renewals, or amendments Seller of contracts in the ordinary course of business consistent with past practiceExcluded Assets); (xiii) waive, release or assign any material rights, claims or benefits of the Company or any Subsidiary under any Company Material Agreement; (xivj) enter into any Government Contract peering agreements, IRU agreements or submit any bid for a Government Contract that would, under the federal rules covering Organizational Conflicts of Interest, as that term is used in Federal Acquisition Regulation Subpart 9.5, limit the Parent, the Surviving Corporation or any of their respective Subsidiaries from engaging in any line of business, competing with any Person or selling any product or serviceLeases; (xvk) engage in pay, lend, or advance any "reportable transaction," including amount to, or sell, transfer or lease any "listed transaction," within the meaning properties or assets to, or enter into any agreement or arrangement with, any of Code Section 6011 or any its Affiliates other applicable federal Law including any Internal Revenue Service ruling, procedure, notice or other pronouncement; (xvi) waive or release any rights that are material to than the Company and its Subsidiaries, taken as a whole, or pay, discharge or satisfy any claims, liabilities or obligations that are, or would reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole, before the same come due in accordance with their termsSubsidiary, except as disclosed on Schedule 5.3(k) of the Disclosure Schedule or in either case other than connection with the paymentReorganization, discharge and satisfaction in provided, that the ordinary course of business of liabilities reflected on or reserved for in the Financial Statements Reorganization does not create any obligation of the Company included in with respect to the most recent Filed SEC Documents or otherwise incurred in foregoing that shall survive the ordinary course of business, consistent with past practice; (xvii) settle or compromise any material pending or threatened suit, action or proceedingClosing; or (xviiil) agree, resolve or commit agree in writing to do take any of the foregoingforegoing actions.

Interim Conduct of the Company. (a) Except as expressly permitted by this Agreement, set forth in Section 5.3 of the Company Disclosure Letter, or pursuant to the Parent's ’s prior written consent (consent, which consent shall not be unreasonably withheld, conditioned or delayed, delayed (it being understood that reasonableness for this purpose will be assessed both from the Parent's ’s perspective assuming the Closing will take place in accordance with this AgreementAgreement and from the Company’s perspective in connection with its operational needs), from and after the Agreement Date through the Effective Time, the Company shall, and shall cause each of its Subsidiaries, (i) to conduct its operations in accordance with its ordinary course of businessbusiness in all material respects, consistent with past practice, and (ii) use its reasonable efforts to preserve intact its business organization, keep available the services of its current officers and employees, preserve the goodwill of those having business relationships with the Company and its Subsidiaries, preserve its relationships with customers, creditors and suppliers, maintain its books, accounts and records and comply in all material respects with applicable Laws. (b) Without limiting the generality of the foregoing, except as provided in this Agreement, or in Section 5.3 of the Company Disclosure Letter, from and after the Agreement Date through the Effective Time, the Company shall not, and shall not cause or permit any of its Subsidiaries to, take any of the following actions without the prior written consent of the Parent (which consent shall not be unreasonably withheld, conditioned or delayed, it being understood that reasonableness for this purpose shall be assessed from the Parent's perspective assuming the Closing shall take place in accordance with this Agreement):: (i) amend or propose to amend its certificate (or articles) of incorporation or bylaws or file any certificate of designation or similar instrument with respect to any shares of its authorized but unissued capital stock; (ii) authorize or effect any stock split, combination or reclassification of shares of its capital stock or amend any term of any outstanding security of the Company or repurchase, redeem or otherwise acquire any shares of its capital stock; (iii) declare, pay or set aside any dividend or distribution with respect to the Company Common Stock or any other of its capital stock (other than dividends payable by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), authorize for issuance or issue, sell, grant any shares of its capital stock (other than in connection with the exercise of Company Options outstanding on the Agreement Date and listed in the Company Disclosure Letter or in connection with any "Offering Period" offering period under the Stock Purchase Plan ESPP that has commenced prior to the Agreement Date; provided, however, that participants may not increase their payroll deductions or purchase selections from those in effect as of the Agreement Date.), options, warrants, stock appreciation rights, phantom equity, commitments, subscriptions, other rights of any kind (including Company Stock Based Awards) to acquire any shares of capital stock, or any other securities exercisable or exchangeable for or convertible into shares of its capital stock, or repurchase, redeem or otherwise acquire any shares of its capital stock or any other securities exercisable or exchangeable for or convertible into shares of its capital stock; (iv) merge or consolidate with any entity or liquidate, dissolve or effect any recapitalization or reorganization in any form or create any new Subsidiary; (v) sell, lease, license, pledge, encumber or otherwise dispose of any (A) Owned Real Property (other than in connection with any definitive agreement to sell, lease, pledge, encumber or otherwise dispose of any such Owned Real Property entered into prior to the date hereof) or (B) any other assets or any interests (including any shares of the capital stock of any of the Subsidiaries) that are material to the Company and its Subsidiaries, taken as a whole, other than assets used, consumed, replaced or sold in the ordinary course of business, consistent with past practice; (vi) acquire (whether by purchase of assets, purchase of stock, merger or otherwise) (A) any assets (including any equity interests) other than in the ordinary course of business or (B) any equity interest of any Person or any business or division of any business, or enter into any joint venture, partnership agreement, joint development agreement, strategic alliance agreement or other similar agreement (other than teaming or other similar agreements entered into by the Company and/or its Subsidiaries in the ordinary course of business, consistent with past practice); (vii) create, incur, assume or otherwise become liable for any indebtedness for borrowed money, or guarantee any such indebtedness; issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or its Subsidiaries; guarantee any debt securities of others; enter into any "“keep well" ” or other contract to maintain any financial statement condition of any Person other than a wholly-owned Subsidiary or enter into any arrangement having the economic effect of the foregoing, other than indebtedness existing as of the Agreement DateDate or incurred to refinance existing indebtedness on monetary terms, including with respect to prepayment, no less favorable to the Company or its Subsidiaries than the indebtedness being refinanced, borrowings under existing credit lines or any of the foregoing created, incurred or assumed in the ordinary course of business, consistent with past practice, practice and intercompany indebtedness among the Company and its wholly-owned Subsidiaries; (viii) except as required as a result of changes in Law, GAAP or Regulation S-X of the Exchange Act, change any of the accounting principles or practices used by it as of September 30December 28, 2005 that would reasonably be expected to materially affect the assets, liabilities or results of operation of the Company or any of its Subsidiaries; (ix) make or change any material Tax election, settle or compromise any material Tax liabilityliability involving a payment of more than $1,000,000, change in any material respect any accounting method in respect of Taxes, file any amendment to a material Tax Return, enter into any closing agreement, settle any material claim or material assessment in respect of TaxesTaxes involving a payment of more than $1,000,000, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, except, in each case, in the ordinary course of business consistent with past practice, or make any Tax payment outside the ordinary course of business consistent with past practice; (x) except other than (A) as set forth in Section 5.3(x) of the Company Disclosure Letter or (B) as required under to comply with applicable Laws or the terms of any employment-related agreement in effect on the Agreement Date, increase the compensation payable or to become payable to any director, director or officer or employee (other than increases in cash compensation to employees who are not directors or officers, made in the ordinary course of business, consistent with past practice) or adopt, it being understood that the Company's annual increases of salaries and setting of bonus targets which shall be approved in February 2006 and the Company's approval of 2005 bonuses which shall occur in February 2006enter into, shall not be deemed a violation of this provision if such action results in salaries, 2005 bonuses and 2006 bonus targets that are consistent with the Company's past practices in the aggregate) or increase any bonus, insurance, severance, pension or other benefit plan, payment or arrangement made to, for or with any such directors, officers or other employees, or grant any severance or termination pay to any executive officer or director, director or to any other employee except payments made (1) in connection with the termination of employees who are not executive officers or directors in amounts consistent with its policies (existing immediately prior to the Agreement Date) and past practice or (2) pursuant to written agreements listed on Section 5.3(b)(x) of the Company Disclosure Letterpractice; (xi) enter into, adopt, amend or terminate any Company Plan or collective bargaining agreement; (xii) make any capital expenditure, capital addition or capital improvement in amounts an amount exceeding $100,000 or $1,000,000 in any individual occurrencethe aggregate; (xiii) (A) enter into any contract, agreement or commitment (excluding purchase contracts for food or beverage supplies that (x) either do not require any volume commitments or (y) to the extent they do require volume commitments (I) could not require payments of $1,000,000 in the aggregate over the term of any such contract and (II) do not expire on or after December 31, 2006) of a character that is, or would reasonably be expected to be, material to the Company and its Subsidiaries taken as a whole, except that or could require payments of more than $1,000,000 in the Company may enter into aggregate over the term of any such contract, agreement or commitment in the ordinary course of business consistent with past practice or (B) terminate, renew or amend in any material respect any contract, agreement or commitment that is, or would reasonably be expected to be, material to the Company and its Subsidiaries taken as a whole, except for terminations, renewals, or amendments could require payments of contracts more than $1,000,000 in the ordinary course aggregate over the term of business consistent with past practiceany such contract, agreement or commitment; (xiiixiv) waive, release or assign any material rights, claims or benefits of the Company or any Subsidiary under any Company Material Agreement; (xiv) enter into any Government Contract or submit any bid for a Government Contract that would, under the federal rules covering Organizational Conflicts of Interest, as that term is used in Federal Acquisition Regulation Subpart 9.5, limit the Parent, the Surviving Corporation or any of their respective Subsidiaries from engaging in any line of business, competing with any Person or selling any product or service; (xv) engage in any "“reportable transaction," ” including any "“listed transaction," ” each within the meaning of Code Section 6011 or any other applicable federal Law Law, including any Internal Revenue Service ruling, procedure, notice or other pronouncement; (xvi) waive or release any rights that are material to the Company and its Subsidiaries, taken as a whole, or pay, discharge or satisfy any claims, liabilities or obligations that are, or would reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole, before the same come due in accordance with their terms, except in either case other than the payment, discharge and satisfaction in the ordinary course of business of liabilities reflected on or reserved for in the Financial Statements of the Company included in the most recent Filed Company SEC Documents or otherwise incurred in the ordinary course of business, consistent with past practice; (xvii) settle or compromise any material pending or threatened suit, action or proceedingproceeding involving a settlement payment by the Company or any of its Subsidiaries in excess of $250,000 or requiring the Surviving Corporation to take or refrain from taking any material action after the Effective Time; (xviii) acquire, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise) any material Company Intellectual Property, or enter into any material commitment or transaction or take any material action, with respect to any Intellectual Property outside the ordinary course of business consistent with past practice, or do any act or knowingly omit to do any act whereby any Company Intellectual Property material to the business of the Company or any of its Subsidiaries may become invalidated, abandoned, unmaintained, unenforceable or dedicated to the public domain; or (xviiixix) agree, resolve or commit to do any of the foregoing.

Interim Conduct of the Company. (a) Except as expressly permitted by this Agreement, set forth in Section 5.3 of the Company Disclosure Letter, or pursuant to the Parent's prior written consent (consent, which consent shall not be unreasonably withheld, conditioned or delayed, delayed (it being understood that reasonableness for this purpose will be assessed both from the Parent's perspective assuming the Closing will take place in accordance with this AgreementAgreement and from the Company's perspective in connection with its operational needs), from and after the Agreement Date through the Effective Time, the Company shall, and shall cause each of its Subsidiaries, (i) to conduct its operations in accordance with its ordinary course of businessbusiness in all material respects, consistent with past practice, and (ii) use its reasonable efforts to preserve intact its business organization, keep available the services of its current officers and employees, preserve the goodwill of those having business relationships with the Company and its Subsidiaries, preserve its relationships with customers, creditors and suppliers, maintain its books, accounts and records and comply in all material respects with applicable Laws. (b) Without limiting the generality of the foregoing, except as provided in this Agreement, or in Section 5.3 of the Company Disclosure Letter, from and after the Agreement Date through the Effective Time, the Company shall not, and shall not cause or permit any of its Subsidiaries to, take any of the following actions without the prior written consent of the Parent (which consent shall not be unreasonably withheld, conditioned or delayed, it being understood that reasonableness for this purpose shall be assessed from the Parent's perspective assuming the Closing shall take place in accordance with this Agreement):: (i) amend or propose to amend its certificate (or articles) of incorporation or bylaws or file any certificate of designation or similar instrument with respect to any shares of its authorized but unissued capital stock; (ii) authorize or effect any stock split, combination or reclassification of shares of its capital stock or amend any term of any outstanding security of the Company or repurchase, redeem or otherwise acquire any shares of its capital stock; (iii) declare, pay or set aside any dividend or distribution with respect to the Company Common Stock or any other of its capital stock (other than dividends payable by a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary), authorize for issuance or issue, sell, grant any shares of its capital stock (other than in connection with the exercise of Company Options outstanding on the Agreement Date and listed in the Company Disclosure Letter or in connection with any "Offering Period" offering period under the Stock Purchase Plan ESPP that has commenced prior to the Agreement Date; provided, however, that participants may not increase their payroll deductions or purchase selections from those in effect as of the Agreement Date.), options, warrants, stock appreciation rights, phantom equity, commitments, subscriptions, other rights of any kind (including Company Stock Based Awards) to acquire any shares of capital stock, or any other securities exercisable or exchangeable for or convertible into shares of its capital stock, or repurchase, redeem or otherwise acquire any shares of its capital stock or any other securities exercisable or exchangeable for or convertible into shares of its capital stock; (iv) merge or consolidate with any entity or liquidate, dissolve or effect any recapitalization or reorganization in any form or create any new Subsidiary; (v) sell, lease, license, pledge, encumber or otherwise dispose of any (A) Owned Real Property (other than in connection with any definitive agreement to sell, lease, pledge, encumber or otherwise dispose of any such Owned Real Property entered into prior to the date hereof) or (B) any other assets or any interests (including any shares of the capital stock of any of the Subsidiaries) that are material to the Company and its Subsidiaries, taken as a whole, other than assets used, consumed, replaced or sold in the ordinary course of business, consistent with past practice; (vi) acquire (whether by purchase of assets, purchase of stock, merger or otherwise) (A) any assets (including any equity interests) other than in the ordinary course of business or (B) any equity interest of any Person or any business or division of any business, or enter into any joint venture, partnership agreement, joint development agreement, strategic alliance agreement or other similar agreement (other than teaming or other similar agreements entered into by the Company and/or its Subsidiaries in the ordinary course of business, consistent with past practice); (vii) create, incur, assume or otherwise become liable for any indebtedness for borrowed money, or guarantee any such indebtedness; issue or sell any debt securities or warrants or rights to acquire any debt securities of the Company or its Subsidiaries; guarantee any debt securities of others; enter into any "keep well" or other contract to maintain any financial statement condition of any Person other than a wholly-owned Subsidiary or enter into any arrangement having the economic effect of the foregoing, other than indebtedness existing as of the Agreement DateDate or incurred to refinance existing indebtedness on monetary terms, including with respect to prepayment, no less favorable to the Company or its Subsidiaries than the indebtedness being refinanced, borrowings under existing credit lines or any of the foregoing created, incurred or assumed in the ordinary course of business, consistent with past practice, practice and intercompany indebtedness among the Company and its wholly-owned Subsidiaries; (viii) except as required as a result of changes in Law, GAAP or Regulation S-X of the Exchange Act, change any of the accounting principles or practices used by it as of September 30December 28, 2005 that would reasonably be expected to materially affect the assets, liabilities or results of operation of the Company or any of its Subsidiaries; (ix) make or change any material Tax election, settle or compromise any material Tax liabilityliability involving a payment of more than $1,000,000, change in any material respect any accounting method in respect of Taxes, file any amendment to a material Tax Return, enter into any closing agreement, settle any material claim or material assessment in respect of TaxesTaxes involving a payment of more than $1,000,000, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, except, in each case, in the ordinary course of business consistent with past practice, or make any Tax payment outside the ordinary course of business consistent with past practice; (x) except other than (A) as set forth in Section 5.3(x) of the Company Disclosure Letter or (B) as required under to comply with applicable Laws or the terms of any employment-employment- related agreement in effect on the Agreement Date, increase the compensation payable or to become payable to any director, director or officer or employee (other than increases in cash compensation to employees who are not directors or officers, made in the ordinary course of business, consistent with past practice) or adopt, it being understood that the Company's annual increases of salaries and setting of bonus targets which shall be approved in February 2006 and the Company's approval of 2005 bonuses which shall occur in February 2006enter into, shall not be deemed a violation of this provision if such action results in salaries, 2005 bonuses and 2006 bonus targets that are consistent with the Company's past practices in the aggregate) or increase any bonus, insurance, severance, pension or other benefit plan, payment or arrangement made to, for or with any such directors, officers or other employees, or grant any severance or termination pay to any executive officer or director, director or to any other employee except payments made (1) in connection with the termination of employees who are not executive officers or directors in amounts consistent with its policies (existing immediately prior to the Agreement Date) and past practice or (2) pursuant to written agreements listed on Section 5.3(b)(x) of the Company Disclosure Letterpractice; (xi) enter into, adopt, amend or terminate any Company Plan or collective bargaining agreement; (xii) make any capital expenditure, capital addition or capital improvement in amounts an amount exceeding $100,000 or $1,000,000 in any individual occurrencethe aggregate; (xiii) (A) enter into any contract, agreement or commitment (excluding purchase contracts for food or beverage supplies that (x) either do not require any volume commitments or (y) to the extent they do require volume commitments (I) could not require payments of $1,000,000 in the aggregate over the term of any such contract and (II) do not expire on or after December 31, 2006) of a character that is, or would reasonably be expected to be, material to the Company and its Subsidiaries taken as a whole, except that or could require payments of more than $1,000,000 in the Company may enter into aggregate over the term of any such contract, agreement or commitment in the ordinary course of business consistent with past practice or (B) terminate, renew or amend in any material respect any contract, agreement or commitment that is, or would reasonably be expected to be, material to the Company and its Subsidiaries taken as a whole, except for terminations, renewals, or amendments could require payments of contracts more than $1,000,000 in the ordinary course aggregate over the term of business consistent with past practiceany such contract, agreement or commitment; (xiiixiv) waive, release or assign any material rights, claims or benefits of the Company or any Subsidiary under any Company Material Agreement; (xiv) enter into any Government Contract or submit any bid for a Government Contract that would, under the federal rules covering Organizational Conflicts of Interest, as that term is used in Federal Acquisition Regulation Subpart 9.5, limit the Parent, the Surviving Corporation or any of their respective Subsidiaries from engaging in any line of business, competing with any Person or selling any product or service; (xv) engage in any "reportable transaction,, " including any "listed transaction," each within the meaning of Code Section 6011 or any other applicable federal Law Law, including any Internal Revenue Service ruling, procedure, notice or other pronouncement; (xvi) waive or release any rights that are material to the Company and its Subsidiaries, taken as a whole, or pay, discharge or satisfy any claims, liabilities or obligations that are, or would reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole, before the same come due in accordance with their terms, except in either case other than the payment, discharge and satisfaction in the ordinary course of business of liabilities reflected on or reserved for in the Financial Statements of the Company included in the most recent Filed Company SEC Documents or otherwise incurred in the ordinary course of business, consistent with past practice; (xvii) settle or compromise any material pending or threatened suit, action or proceedingproceeding involving a settlement payment by the Company or any of its Subsidiaries in excess of $250,000 or requiring the Surviving Corporation to take or refrain from taking any material action after the Effective Time; (xviii) acquire, sell, lease, license, transfer, pledge, encumber, grant or dispose of (whether by merger, consolidation, purchase, sale or otherwise) any material Company Intellectual Property, or enter into any material commitment or transaction or take any material action, with respect to any Intellectual Property outside the ordinary course of business consistent with past practice, or do any act or knowingly omit to do any act whereby any Company Intellectual Property material to the business of the Company or any of its Subsidiaries may become invalidated, abandoned, unmaintained, unenforceable or dedicated to the public domain; or (xviiixix) agree, resolve or commit to do any of the foregoing.