Common use of Negative Covenants of the Company Clause in Contracts

Negative Covenants of the Company. Except as expressly contemplated by this Agreement or otherwise consented to in writing by Acquiror, from the date hereof until the Closing Date, the Company shall not, and shall cause each Company Subsidiary not to, do any of the following: (a) declare or pay any dividend on, or make any other distribution in respect of, outstanding shares of its capital stock; (i) redeem, repurchase or otherwise reacquire any shares of its capital stock or other securities or any securities or obligations convertible into or exchangeable for any share of its capital stock or other securities, or any options, warrants or conversion or other rights to acquire any shares of its capital stock or other securities or any such securities or obligations (except in connection with the exercise of outstanding Options in accordance with their respective terms); (ii) effect any merger, consolidation, restructuring, reorganization or recapitalization, or adopt a plan of complete or partial liquidation or dissolution; or (iii) adjust, split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its capital stock or other securities; (c) (i) issue, pledge, deliver, award, grant or sell, or register under the Securities Act or the Exchange Act or otherwise file any registration statement under any statute covering, or authorize or propose the issuance, pledge, delivery, award, grant or sale of (including the grant of any Encumbrances on) or registration of or filing of any registration statement covering any shares of any class of its capital stock or other securities (including shares held in treasury), any securities convertible into or exercisable or exchangeable for any such shares or other securities, or any rights, warrants or options to acquire any such shares or other securities (except in connection with the exercise of outstanding Options); or (ii) amend or otherwise modify the terms of any such rights, warrants or options; (d) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, (i) any business or any corporation, partnership, association or other business organization or division (other than a wholly-owned Subsidiary of the Company) thereof; (ii) make or commit to make any capital expenditures other than capital expenditures not exceeding in the aggregate Fifty Thousand Dollars ($50,000.00) and which are solely for equipment, furniture and fixtures incurred in the ordinary course of business consistent with past practices; or (iii) make or commit to make any loans, advances or capital contributions to, or investments in, any other Person. (e) sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, any of its assets, except for sales of inventory in the ordinary course of business and consistent with past practices; (i) except as otherwise contemplated by this Agreement or as required to comply with applicable law, (ii) adopt, enter into, terminate or amend in any material respect (A) any Company Benefit Plan or (B) any other agreement, plan or policy involving the Company or the Company Subsidiaries, and one or more of its current or former directors, officers or employees; (iii) increase in any manner the compensation, bonus or fringe or other benefits of, or pay any bonus to, any current or former officer, director or employee (except for normal increases of cash compensation or cash bonuses in the ordinary course of business consistent with past practice that, in the aggregate, do not materially increase benefits or compensation expenses of the Company or the Company Subsidiaries); (iv) pay any benefit or amount not required under any Company Benefit Plan or any other benefit plan or arrangement of the Company or the Company Subsidiaries as in effect on the date of this Agreement; (v) increase in any manner the severance or termination pay of any current or former director, officer or employee; (vi) enter into or amend any employment, deferred compensation, consulting, severance, termination or indemnification agreement, arrangement or understanding with any current or former employee, officer or director; (vii) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, "phantom" stock, stock appreciation rights, "phantom" stock rights stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Company Benefit Plans or agreements or awards made thereunder); (viii) amend or modify any Option, (ix) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; (x) take any action to accelerate the vesting of payment of any compensation or benefit under any Company Benefit Plan or (xi) materially change any actuarial or other assumption used to calculate funding obligations with respect to any pension plan or change the manner in which contributions to any pension plan are made or the basis on which such contributions are determined; (g) propose or adopt any amendments to its certificate or articles of incorporation or its bylaws; (i) make any change in any of its methods of accounting, or (ii) make or rescind any express or deemed election relating to Taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or change any of its methods of reporting income or deductions for federal income tax purposes from those employed in the preparation of the federal income tax returns for the taxable year ended December 31, 1998, except, in the case of clause (i) or clause (ii), as may be required by law or GAAP; (i) incur any Indebtedness, or prepay, before the scheduled maturity thereof, any long-term debt; (j) engage in any transaction with, or enter into any agreement, arrangement, or understanding with, directly or indirectly, any of such entity's Affiliates which involves the transfer of consideration or has a financial impact on such entity, other than pursuant to such agreements, arrangements, or understandings existing on the date of this Agreement; (k) enter into any contract, agreement, commitment, arrangement, lease (including with respect to personal property), policy or other instrument which, had it been entered into as of the date hereof, would have been included as a Company Material Contract; (l) enter into any contracts, agreements, binding arrangements or understandings relating to the distribution, sale, license, marketing or manufacturing by third parties of the products of the Company or the Company Subsidiaries, or products licensed by the Company or the Company Subsidiaries, other than pursuant to any such contracts, agreements, arrangements or understandings in place as of the date of this Agreement (that have been disclosed in writing to Acquiror prior to the date hereof) in accordance with their terms as of the date hereof; (m) except for transactions in the ordinary course of business, terminate, or amend or waive any provision of, any Company Material Contract; (i) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice of claims for money damages which do not exceed Fifty Thousand Dollars ($50,000) in the aggregate or in accordance with their terms or liabilities disclosed, reflected or reserved against in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Company SEC Reports; (ii) cancel any indebtedness; (iii) waive or assign any claims or rights of material value or (iv) waive any benefits of, or agree to modify in any respect (A) any standstill or similar agreements to which the Company or any of the Company Subsidiaries is a party or (B) other than in the ordinary course of business, any confidentiality or similar agreements to which the Company or any of the Company Subsidiaries is a party; (o) transfer or license to any Person or otherwise extend, amend or modify any rights to the Company Intellectual Property; (p) take any action that is intended or would reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VIII not being satisfied or in a violation of any provision of this Agreement; (q) take any action that would be reasonably likely to prevent the Merger from being accounted for as a "pooling of interests" in accordance with GAAP; (r) accelerate the collection of any accounts receivable; or (s) agree in writing or otherwise to do any of the foregoing.

Negative Covenants of the Company. Except For so long as expressly contemplated by this Agreement or otherwise consented to in writing by Acquiror, from the date hereof until the Closing Date, the Company shall not, and shall cause each Company Subsidiary not to, do (i) any of the following: (a) declare Buyers holds Term Notes, Preferred Stock or pay any dividend onConversion Shares, or make (ii) any other distribution in respect ofRevolving Loans are outstanding, outstanding shares the Company, without the written consent of its capital stock;the Buyer or Buyers that hold such Notes, Preferred Stock or Conversion Shares, shall not: (i) redeemauthorize, repurchase issue or otherwise reacquire agree to authorize or issue any shares new class or series of its capital stock Parity Securities or other Senior Securities or securities or any securities or obligations convertible into or exchangeable for any share of its capital stock or other securities, or any options, warrants or conversion or other rights to acquire any shares of its capital stock or other securities or any such securities or obligations (except in connection with the exercise of outstanding Options in accordance with their respective terms); (ii) effect any merger, consolidation, restructuring, reorganization or recapitalization, or adopt a plan of complete or partial liquidation or dissolution; or (iii) adjust, split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its capital stock or other securities; (c) (i) issue, pledge, deliver, award, grant or sell, or register under the Securities Act or the Exchange Act or otherwise file any registration statement under any statute covering, or authorize or propose the issuance, pledge, delivery, award, grant or sale of (including the grant of any Encumbrances on) or registration of or filing of any registration statement covering any shares of any class of its capital stock or other securities (including shares held in treasury), any securities kind convertible into or exercisable or exchangeable for any such shares Parity Securities or other securitiesSenior Securities, or offer, sell or issue any rightsParity Securities or Senior Securities or securities or rights of any kind convertible into or exercisable or exchangeable for any such Parity Securities or Senior Securities; (ii) authorize, warrants issue or agree to authorize or issue Common Stock at a discount to the Market Price of the Common Stock on the date of issuance (taking into account the value of any Preferred Stock or options to acquire any such shares or other securities (except Common Stock issued in connection with therewith), provided, however, that this Section 6(h) shall not prohibit the exercise Company from issuing up to 1,000,000 shares of outstanding Options); Common Stock and/or Options therefore issued to the Company’s officers, directors, employees, consultants or independent contractors pursuant to an equity incentive plan or another similar plan or agreement approved by the Board of Directors; (iii) authorize, issue or agree to authorize or issue convertible securities that are convertible into an indeterminate number of shares of Common Stock; (iv) purchase, repurchase or redeem shares of (i) Common Stock, (ii) amend securities or otherwise modify the terms rights of any such rights, warrants kind convertible into or options; (d) acquire exercisable or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, (i) any business or any corporation, partnership, association or other business organization or division (other than a wholly-owned Subsidiary of the Company) thereof; (ii) make or commit to make any capital expenditures other than capital expenditures not exceeding in the aggregate Fifty Thousand Dollars ($50,000.00) and which are solely exchangeable for equipment, furniture and fixtures incurred in the ordinary course of business consistent with past practices; Common Stock or (iii) make or commit to make any loansother securities of the Company, advances or capital contributions to, or investments in, any other Person. (e) sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, any of its assets, except for sales of inventory in the ordinary course case of business a termination of an employee, at which the Company may repurchase or redeem such shares of Common Stock at cost and consistent with past practicespursuant to any agreement under which such shares of Common Stock were issued); (iv) declare or pay dividends or any other distribution on shares of Common Stock or any other capital stock of the Company except as otherwise contemplated by this Agreement with respect to the Preferred Stock; (vi) amend the Articles of Incorporation or as required to comply with applicable law, (ii) adopt, enter into, terminate or amend in any material respect (A) any Company Benefit Plan or (B) any other agreement, plan or policy involving the Company or the Company Subsidiaries, and one or more of its current or former directors, officers or employees; (iii) increase in any manner the compensation, bonus or fringe or other benefits of, or pay any bonus to, any current or former officer, director or employee (except for normal increases of cash compensation or cash bonuses in the ordinary course of business consistent with past practice that, in the aggregate, do not materially increase benefits or compensation expenses Bylaws of the Company or alter or change the Company Subsidiaries); (iv) pay any benefit rights, preferences or amount not required under any Company Benefit Plan privileges of the Preferred Stock or any Parity Securities or Senior Securities in each case so as to affect adversely the rights, preferences or privileges of the Preferred Stock; (vii) merge or consolidate with any other benefit plan entity, or arrangement sell, assign, license, lease or otherwise dispose of or voluntarily part with the control of (whether in one transaction or in a series of transactions all, or a significant portion, of its assets (whether now owned or later acquired)), or effect any transaction or series of transactions in which the holders of the Company’s voting interests prior to such transaction or series of transactions hold less than 50% of the voting interests of the Company following such transaction or series of transactions; (viii) increase or decrease the number of directors constituting the Company’s Board of Directors; (ix) incur Indebtedness for Borrowed Money in any single transaction in excess of $10,000,000 or which obligates the Company Subsidiaries as to make aggregate expenditures for all Indebtedness for Borrowed Money in effect on the date excess of this Agreement; $50,000,000; (v) increase in any manner the severance or termination pay of any current or former director, officer or employee; (vix) enter into or amend any employment, deferred compensation, consulting, severance, termination or indemnification non-ordinary course agreement, arrangement or understanding with any current or former employee, officer or director; (vii) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, "phantom" stock, stock appreciation rights, "phantom" stock rights stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Company Benefit Plans or agreements or awards made thereunder); (viii) amend or modify any Option, (ix) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; (x) take any action to accelerate the vesting of payment of any compensation or benefit under any Company Benefit Plan or (xi) materially change any actuarial or other assumption used to calculate funding obligations with respect to any pension plan or change the manner in which contributions to any pension plan are made or the basis on which such contributions are determined; (g) propose or adopt any amendments to its certificate or articles of incorporation or its bylaws; (i) make any change in any of its methods of accounting, or (ii) make or rescind any express or deemed election relating to Taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or change any of its methods of reporting income or deductions for federal income tax purposes from those employed in the preparation of the federal income tax returns for the taxable year ended December 31, 1998, except, in the case of clause (i) or clause (ii), as may be required by law or GAAP; (i) incur any Indebtedness, or prepay, before the scheduled maturity thereof, any long-term debt; (j) engage in any transaction with, or enter into any agreement, arrangement, or understanding with, directly or indirectly, any with officers, employees, stockholders, directors or affiliates of such entity's Affiliates which involves the transfer of consideration or has a financial impact on such entityCompany, other than pursuant to such employment agreements, compensation arrangements, stock options or understandings existing on service-related transactions that are approved by a majority of the date disinterested members of this Agreementthe Company’s Board of Directors; (kxi) enter into any contract, agreement, commitment, arrangement, lease (including with respect to personal property), policy initiate the voluntary dissolution or other instrument which, had it been entered into as winding up or reorganization of the date hereof, would have been included as a Company Material Contract; (l) enter into any contracts, agreements, binding arrangements or understandings relating to the distribution, sale, license, marketing or manufacturing by third parties of the products of the Company or the Company Subsidiaries, or products licensed by the Company or the Company Subsidiaries, other than pursuant to any such contracts, agreements, arrangements or understandings in place as of the date of this Agreement (that have been disclosed in writing to Acquiror prior to the date hereof) in accordance with their terms as of the date hereof; (m) except for transactions in the ordinary course of business, terminate, or amend or waive any provision of, any Company Material Contract; (i) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice of claims for money damages which do not exceed Fifty Thousand Dollars ($50,000) in the aggregate or in accordance with their terms or liabilities disclosed, reflected or reserved against in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Company SEC Reports; (ii) cancel any indebtedness; (iii) waive or assign any claims or rights of material value or (iv) waive any benefits of, or agree to modify in any respect (A) any standstill or similar agreements to which the Company or any of the Company Subsidiaries is a party or (B) other than in the ordinary course of business, any confidentiality or similar agreements to which the Company or any of the Company Subsidiaries is a party; (o) transfer or license to any Person or otherwise extend, amend or modify any rights to the Company Intellectual Property; (p) take any action that is intended or would reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VIII not being satisfied or in a violation of any provision of this Agreement; (q) take any action that would be reasonably likely to prevent the Merger from being accounted for as a "pooling of interests" in accordance with GAAP; (r) accelerate the collection of any accounts receivableCompany; or (sxii) agree in writing or otherwise to do any of the foregoingchange its fiscal year.

Negative Covenants of the Company. Except as otherwise required or expressly contemplated by this Agreement or otherwise consented to in writing by AcquirorBuyer, the Company will not and will not permit any of its Subsidiaries to, from the date hereof until the Closing Date, the Company shall not, and shall cause each Company Subsidiary not to, do any of the followingEffective Time: (a) declare split, combine, or reclassify any shares of its capital stock or make any other changes in its equity capital structure; (b) purchase, redeem, or otherwise acquire, directly or indirectly, any shares of its capital stock or any options, rights, or warrants to purchase any such capital stock or any securities convertible into or exchangeable for any such capital stock; (c) declare, set aside, or pay any dividend on, or make any other distribution in respect of, outstanding of shares of its capital stock; (id) redeemamend its charter, repurchase bylaws, or otherwise reacquire similar organizational documents; (e) issue any shares of its capital stock or other securities any options, rights, or warrants to purchase any such capital stock or any securities or obligations convertible into or exchangeable for any share such capital stock, except for issuances of its capital stock or other securities, or any options, warrants or conversion or other rights to acquire any shares of its capital stock or other securities or any such securities or obligations (except in connection with Company Common Stock upon the exercise of outstanding Options in accordance with their respective terms); (ii) effect any merger, consolidation, restructuring, reorganization options or recapitalizationof any Rights under the Rights Agreement, or adopt a plan designate any class or series of complete or partial liquidation or dissolution; or (iii) adjust, split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of from its capital stock or other securitiesauthorized but undesignated preferred stock; (cf) (i) issue, pledge, deliver, award, grant purchase any capital assets or sell, or register under the Securities Act or the Exchange Act or otherwise file any registration statement under any statute covering, or authorize or propose the issuance, pledge, delivery, award, grant or sale of (including the grant of any Encumbrances on) or registration of or filing of any registration statement covering any shares of any class of its capital stock or other securities (including shares held in treasury), any securities convertible into or exercisable or exchangeable for any such shares or other securities, or any rights, warrants or options to acquire any such shares or other securities (except in connection with the exercise of outstanding Options); or (ii) amend or otherwise modify the terms of any such rights, warrants or options; (d) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, (i) any business or any corporation, partnership, association or other business organization or division (other than a wholly-owned Subsidiary of the Company) thereof; (ii) make or commit to make any capital expenditures (except as set forth in the Company's current capital expenditures budget, a copy of which has been delivered to Buyer) in excess of $250,000 in the aggregate, purchase any business, purchase any stock of any corporation, or merge or consolidate with any person; (g) sell, lease, license, encumber or otherwise dispose of any assets or properties, other than capital expenditures not exceeding in the aggregate Fifty Thousand Dollars ($50,000.00) and which are solely for equipment, furniture and fixtures incurred in the ordinary course of business consistent with past practices; practice, which sales, leases, licenses, encumbrances or other dispositions of assets other than inventory, in any event, are not material to the Company and its Subsidiaries, taken as a whole; (h) incur, assume, or guarantee any indebtedness for money borrowed other than (i) borrowings incurred for working capital purposes under the Company's existing revolving credit facility or (iiiii) make or commit to make any loans, advances or capital contributions to, or investments in, any other Person. (e) sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, any of its assets, except for sales of inventory in the ordinary course of business and consistent with past practicesintercompany indebtedness; (i) except as otherwise contemplated by this Agreement or as required to comply with applicable law, (ii) adopt, enter into, terminate or amend in into any material respect (A) any Company new Benefit Plan or (B) any other program or severance or employment agreement, plan or policy involving the Company or the Company Subsidiaries, and one or more of its current or former directors, officers or employees; (iii) increase modify in any manner the compensation, bonus respect any existing Benefit Plan or fringe or other benefits of, or pay any bonus to, any current or former officer, director or employee program (except for normal increases of cash compensation as required by law) or cash bonuses any existing employment or severance agreement, or, except as required under existing agreements or in the ordinary course of business consistent with past practice thatpractice, grant any increases in the aggregate, do not materially increase compensation or benefits or compensation expenses of the Company or the Company Subsidiaries); (iv) pay any benefit or amount not required under any Company Benefit Plan or any other benefit plan or arrangement of the Company or the Company Subsidiaries as in effect on the date of this Agreement; (v) increase in any manner the severance or termination pay of any current or former director, officer or employee; (vi) enter into or amend any employment, deferred compensation, consulting, severance, termination or indemnification agreement, arrangement or understanding with any current or former employeeEmployee, officer or director; (vii) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Benefit Plan (including the grant of stock options, "phantom" stock, stock appreciation rights, "phantom" stock rights stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Company Benefit Plans or agreements or awards made thereunder); (viii) amend or modify any Option, (ix) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; (x) take any action to accelerate the vesting of payment of any compensation or benefit under any Company Benefit Plan or (xi) materially change any actuarial or other assumption used to calculate funding obligations with respect to any pension plan or change the manner in which contributions to any pension plan are made or the basis on which such contributions are determined; (g) propose or adopt any amendments to its certificate or articles of incorporation or its bylaws; (i) make any change in any of its methods of accounting, or (ii) make or rescind any express or deemed election relating to Taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or change any of its methods of reporting income or deductions for federal income tax purposes from those employed in the preparation of the federal income tax returns for the taxable year ended December 31, 1998, except, in the case of clause (i) or clause (ii), as may be required by law or GAAP; (i) incur any Indebtedness, or prepay, before the scheduled maturity thereof, any long-term debt; (j) engage in enter into any transaction with, collective bargaining agreement or enter into any substantive negotiations with respect to any collective bargaining agreement, arrangement, or understanding with, directly or indirectly, any of such entity's Affiliates which involves the transfer of consideration or has a financial impact on such entity, other than pursuant to such agreements, arrangements, or understandings existing on the date of this Agreementexcept as required by law; (k) enter into change or modify in any contractmaterial respect any existing accounting method, agreementprinciple, commitmentor practice, arrangement, lease (including with respect to personal property), policy or other instrument which, had it been entered into than as of the date hereof, would have been included as a Company Material Contractrequired by GAAP; (l) enter into any contractsnew Company Material Contract (other than in the ordinary course of business consistent with past practice), agreements, binding arrangements or understandings relating modify in any respect adverse to the distribution, sale, license, marketing or manufacturing by third parties of the products of the Company or the any of its Subsidiaries any existing Company Subsidiaries, or products licensed by the Company or the Company Subsidiaries, other than pursuant to any such contracts, agreements, arrangements or understandings in place as of the date of this Agreement (that have been disclosed in writing to Acquiror prior to the date hereof) in accordance with their terms as of the date hereofMaterial Contract; (m) fund or take any action to cause a rabbi trust to be funded; (n) agree to pay R. Xxxxx Xxxxxx a transaction bonus of more than $5,000; (o) except for transactions as expressly provided in the ordinary course of businessamendment thereto dated May 30, terminate2001, change, modify or amend or waive any provision of, any commence a new phase pursuant to the Company Material ContractStock Purchase Plan; (p) (i) pay, discharge, settle or satisfy any claimsmaterial claims against the Company or its Subsidiaries (including claims of shareholders), liabilities, liabilities or obligations or litigation (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than (x) the payment, discharge, settlement or satisfaction of such claim, liability or obligation in the ordinary course of business consistent with past practice practice, (y) modifications, refinancings or renewals of claims for money damages which do not exceed Fifty Thousand Dollars existing indebtedness as permitted by the terms thereof as in effect on the date of this Agreement, or ($50,000z) in the aggregate payment, discharge, settlement or in accordance with their terms satisfaction of claims, liabilities or liabilities disclosed, obligations reflected or reserved against in the most recent consolidated audited financial statements (or the notes thereto) of the Company included in the Company SEC Reports; Reports (for amounts not in excess of such reserves) or incurred since the date of such financial statements in the ordinary course of business consistent with past practice, or (ii) cancel waive, release, grant or transfer any indebtedness; (iii) waive or assign any claims or rights right of material value or (iv) waive any benefits ofvalue, or agree to modify in any respect (A) any standstill or similar agreements to which the Company or any of the Company Subsidiaries is a party or (B) other than in the ordinary course of businessbusiness consistent with past practice; (q) enter into any agreement with any of their respective affiliates (other than wholly owned Subsidiaries of the Company); (r) (i) relinquish, waive or release any confidentiality material contractual or similar agreements other right or claim of the Company or its Subsidiaries, or (ii) knowingly dispose of or permit to which lapse any rights in any material Company Proprietary Rights or knowingly disclose to any person not an employee of, or consultant or adviser to, the Company or any of its Subsidiaries of the Company Subsidiaries is or otherwise knowingly dispose of any trade secret, process or knowhow not a partymatter of public knowledge prior to the date of this Agreement, except pursuant to judicial order or process or commercially reasonable disclosures in the ordinary course of business consistent with past practice or pursuant to any existing contract or agreement; (os) transfer or license to any Person or otherwise extend, amend or modify any rights except pursuant to the fiduciary duties of the Board of Directors of the Company Intellectual Property; as set forth in Sections 7.01(a) and (p) b), or as expressly permitted pursuant to Sections 7.02 or 9.01, take any action or omit to take any action that would or is intended or would reasonably be expected likely to (i) result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VIII not being satisfied satisfied, or in a violation (ii) prevent, materially delay or materially impede the consummation of any provision of this Agreement; (q) take any action that would be reasonably likely to prevent the Merger from being accounted for as a "pooling of interests" in accordance with GAAP; (r) accelerate the collection of any accounts receivableMerger; or (st) agree in writing or otherwise enter into any commitment to do any of the foregoing.

Negative Covenants of the Company. Except During the period from the date of this Agreement to the Effective Time, except (i) as set forth on Exhibit 4.2 or as otherwise expressly contemplated by this Agreement or (ii) to the extent that Parent shall otherwise consented to consent in writing by Acquiror, from the date hereof until the Closing Datewriting, the Company shall not, and shall cause each Company Subsidiary not to, do permit any of the followingits Subsidiaries to: (a) declare (i) declare, set aside or pay any dividend dividends on, or make any other distribution distributions (whether in cash, stock or property) in respect of, outstanding shares of its capital stock; (i) redeem, repurchase or otherwise reacquire any shares of its capital stock (other than cash dividends and distributions by Subsidiaries of the Company to the Company or other securities a wholly-owned Subsidiary of the Company or any securities or obligations convertible into or exchangeable for any share of its capital stock or other securitiesthe Company's regular quarterly dividend), or any optionsset aside funds therefor, warrants or conversion or other rights to acquire any shares of its capital stock or other securities or any such securities or obligations (except in connection with the exercise of outstanding Options in accordance with their respective terms); (ii) effect any merger, consolidation, restructuring, reorganization or recapitalization, or adopt a plan of complete or partial liquidation or dissolution; or (iii) adjust, split, combine or reclassify any of its capital stock stock, or issue or issue, authorize or propose the issuance of any other securities in respect of, in lieu of, of or in substitution for, any capital stock or (iii) purchase, redeem or otherwise acquire any capital stock or securities directly or indirectly convertible into, or exercisable or exchangeable for, capital stock, or set aside funds therefor (except upon the exercise of Company Stock Options outstanding on the date of this Agreement as set forth on Exhibit 2.3 (a) to the extent cashless exercises are provided for in the Stock Plan governing such Company Stock Option); (i) except for shares of its Company Common Stock issuable pursuant to Company Stock Options outstanding on the date of this Agreement that are issued in accordance with the current terms thereof and the Stock Plans, issue, deliver, hypothecate, pledge, sell or otherwise encumber any shares of capital stock, any other voting securities or any securities directly or indirectly convertible into, or exercisable or exchangeable for, capital stock or other voting securities, or any "phantom" stock, "phantom" stock rights, stock appreciation rights or stock based performance units or (ii) amend the terms of any outstanding debt or equity security (including any Company Stock Option) or any Stock Plan; (c) amend or propose to amend its certificate or articles of incorporation or bylaws (or other organizational documents); (i) issue, pledge, deliver, award, grant merge or sellconsolidate with, or register under the Securities Act or the Exchange Act or otherwise file acquire any registration statement under any statute covering, or authorize or propose the issuance, pledge, delivery, award, grant or sale of (including the grant of any Encumbrances on) or registration of or filing of any registration statement covering any shares of any class of its capital stock or other securities (including shares held in treasury)interest in, any securities convertible into Person or exercisable division or exchangeable for any such shares or other securitiesunit thereof, or any rights, warrants or options to acquire any such shares or other securities (except in connection with the exercise of outstanding Options); or (ii) amend or otherwise modify the terms of any such rights, warrants or options; (d) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by acquire any other manner, (i) any business or any corporation, partnership, association or other business organization or division (other than a wholly-owned Subsidiary of the Company) thereof; (ii) make or commit to make any capital expenditures other than capital expenditures not exceeding in the aggregate Fifty Thousand Dollars ($50,000.00) and which are solely for equipment, furniture and fixtures incurred in the ordinary course of business consistent with past practices; or (iii) make or commit to make any loans, advances or capital contributions to, or investments in, any other Person. (e) sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, any of its assets, except for sales acquisitions of inventory inventory, equipment, raw materials, tools and other assets in the ordinary course of business and consistent with past practices; practice or (iii) make any loan, advance or capital contribution to, or otherwise make any investment in, any Person other than loans or advances to, or investments in, wholly-owned Subsidiaries of the Company existing on the date of this Agreement in the ordinary course of business consistent with past practice; provided, that the foregoing clauses (i) except as otherwise contemplated by this Agreement or as required to comply with applicable law, and (ii) adoptshall not prohibit any acquisition (or series of related acquisitions) which does not involve, enter intoand is not reasonably expected at the time of consummation thereof to involve, terminate or amend payments by the Company and its Subsidiaries in any material respect excess of (A) $10,000,000 in respect of any Company Benefit Plan single acquisition or series of related acquisitions or (B) any $100,000,000, when taken together with all other agreementsuch acquisitions made after the date hereof pursuant to this proviso and the amount of all capital expenditures made after the date hereof pursuant to the CapEx Basket (as hereinafter defined) (the foregoing proviso, plan the "Acquisition Basket"); (e) sell, lease, license, encumber or policy involving the Company or the Company Subsidiaries, and one or more of its current or former directors, officers or employees; (iii) increase in any manner the compensation, bonus or fringe or other benefits otherwise dispose of, or pay subject to any bonus toLien, any current or former officerof its assets, director or employee other than (except for normal increases i) sales of cash compensation or cash bonuses inventory in the ordinary course of business consistent with past practice thatand (ii) other dispositions so long as the aggregate value of all assets so disposed does not exceed $10,000,000; (f) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution; (g) except for increases in the aggregatecompensation of employees (other than employees who are directors or executive officers) made in the ordinary course of business and consistent with past practice, do not materially increase benefits and except as may be required by applicable Law or compensation expenses of the Company or the Company Subsidiaries); (iv) pay pursuant to any benefit or amount not required under any Company Benefit Plan or any other benefit plan or arrangement of the Company or the Company Subsidiaries as in effect employment agreement existing on the date of this Agreement; , (vi) increase in any manner the severance or termination pay of grant to any current or former director, officer or employee; (vi) enter into or amend employee any employment, deferred material increase in compensation, consulting, severance, termination pay or indemnification agreementfringe or other benefits, arrangement (ii) enter into any new, or understanding amend (including by accelerating rights or benefits under) any existing, employment, indemnification, change of control, severance or termination agreement with any current or former employee, director or executive officer or director; (viiiii) grant any awards establish, adopt or become obligated under any bonus, incentive, performance new Plan or other compensation plan collective bargaining agreement or amend (including by accelerating rights or benefits under) any such Plan or arrangement or Benefit Plan in existence on the date hereof (including except, in each case, to the grant of stock options, "phantom" stock, stock appreciation rights, "phantom" stock rights stock based or stock related awards, performance units or restricted stock or the removal of existing restrictions in any Company Benefit Plans or agreements or awards made thereunderextent required by applicable Law); (viii) amend or modify any Option, (ix) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Benefit Plan; (x) take any action to accelerate the vesting of payment of any compensation or benefit under any Company Benefit Plan or (xi) materially change any actuarial or other assumption used to calculate funding obligations with respect to any pension plan or change the manner in which contributions to any pension plan are made or the basis on which such contributions are determined; (g) propose or adopt any amendments to its certificate or articles of incorporation or its bylaws; (i) make assume, incur or guarantee any change Indebtedness after the date hereof in excess of $5,000,000 in the aggregate at any of its methods of accountingone time outstanding, or (ii) make issue or rescind sell any express debt securities or deemed election relating warrants or rights to Taxesacquire any debt securities, settle (iii) guarantee any other obligations of any other Person or compromise (iv) enter into any claim, action, suit, litigation, proceeding, arbitration, investigation, audit "keep well" or controversy relating other agreement to Taxes, maintain the financial condition of any other Person or change any of its methods of reporting income or deductions for federal income tax purposes from those employed in other agreement having the preparation of the federal income tax returns for the taxable year ended December 31, 1998, except, in the case of clause (i) or clause (ii), as may be required by law or GAAPsame economic effect; (i) incur other than as required by SEC guidelines, GAAP or applicable Law, revalue any Indebtednessmaterial assets or make any changes with respect to accounting policies, procedures and practices or prepay, before the scheduled maturity thereof, any long-term debtchange its fiscal year; (j) engage settle or compromise any pending or threatened claims, litigation, arbitrations or other proceedings (A) involving potential payments by or to the Company or any of its Subsidiaries of more than $1,000,000 in any transaction withthe aggregate, (B) that admit liability or consent to material non-monetary relief, or enter into any agreement(C) that otherwise would reasonably be expected to have, arrangementindividually or in the aggregate, or understanding with, directly or indirectly, any of such entity's Affiliates which involves the transfer of consideration or has a financial impact on such entity, other than pursuant to such agreements, arrangements, or understandings existing on the date of this Agreement; (k) enter into any contract, agreement, commitment, arrangement, lease (including with respect to personal property), policy or other instrument which, had it been entered into as of the date hereof, would have been included as a Company Material Contract; (l) enter into any contracts, agreements, binding arrangements or understandings relating to the distribution, sale, license, marketing or manufacturing by third parties of the products of the Company or the Company Subsidiaries, or products licensed by the Company or the Company Subsidiaries, other than pursuant to any such contracts, agreements, arrangements or understandings in place as of the date of this Agreement (that have been disclosed in writing to Acquiror prior to the date hereof) in accordance with their terms as of the date hereof; (m) except for transactions in the ordinary course of business, terminate, or amend or waive any provision of, any Company Material ContractAdverse Effect; (i) other than with respect to the Debt Offers (as hereinafter defined), pay, discharge, settle discharge or satisfy any other claims, liabilities, liabilities or obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction in the ordinary course of business and consistent with past practice of claims for money damages which do not exceed Fifty Thousand Dollars ($50,000) in the aggregate or in accordance with their terms or liabilities disclosedpractice, reflected or reserved against in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Company SEC Reports; (ii) cancel any indebtedness; Indebtedness, (iii) waive or assign any claims or rights of material that would reasonably be expected to have a value exceeding $1,000,000 or (iv) waive any material benefits of, or agree to modify in any material respect, or materially fail to enforce, or consent to any material matter with respect (A) to which consent is required under, any material confidentiality, standstill or similar agreements agreement to which the Company or any of the Company its Subsidiaries is a party (except for the Confidentiality Agreement); (i) make or rescind any material tax election, (Bii) other than take any tax position or settle or compromise any claim, action, suit, arbitration, investigation, audit, examination, litigation, proceeding (whether judicial or administrative) or matter in the ordinary course of business, any confidentiality or similar agreements controversy relating to which taxes (A) involving potential payments by the Company or any of its Subsidiaries of more than $1,000,000 in the aggregate, (B) that admit liability or consent to any material non-monetary relief, or (C) that otherwise would reasonably be expected, individually or in the aggregate to have a Company Material Adverse Effect, or (iii) make any material change to its method of reporting income, deductions or other tax items for tax purposes; (m) enter into any new line of business; (n) make any capital expenditure; provided that the Company and its Subsidiaries is a partyshall be permitted to make any capital expenditure (or series of related capital expenditures) of less than $10,000,000, individually, or $100,000,000, when taken together with all other capital expenditures made after the date hereof pursuant to this proviso and the aggregate amount of all acquisitions made after the date hereof pursuant to the Acquisition Basket (the foregoing proviso, the "CapEx Basket"); (o) transfer enter into any material contract, agreement or license to any Person or otherwise extend, amend or modify any rights arrangement to the extent consummation of the transactions contemplated by this Agreement or compliance by the Company Intellectual Property; (p) take any action that is intended or would with the provisions of this Agreement could reasonably be expected to result in a Violation of such contract, agreement or arrangement; (p) enter into, modify, amend, cancel or terminate any of its representations and warranties set forth in this Agreement being contract, agreement or becoming untrue in any material respect at any time prior arrangement which if so entered into, modified, amended or terminated would reasonably be expected to the Effective Time, or in any of the conditions to the Merger set forth in Article VIII not being satisfied have a Company Material Adverse Effect or in a violation of any provision manner that would cause a breach of this Agreement; (q) take subject to Section 5.2, alter (through merger, liquidation, reorganization, restructuring or any action that would be reasonably likely to prevent other fashion) the Merger from being accounted for as a "pooling corporate structure or ownership of interests" in accordance with GAAPthe Company or any of its Subsidiaries; (r) accelerate subject to Section 5.2, except to the collection extent that the Board of Directors of the Company (acting through the Special Committee) deems necessary or advisable in connection with the entering into of a Permitted Alternative Agreement (as hereinafter defined) in compliance with the provisions of this Agreement, (i) redeem the Rights, or amend or modify or terminate the Rights Agreement other than to delay the Distribution Date (as defined in the Rights Agreement) with respect to, or to render the Rights inapplicable to, the execution, delivery and performance of this Agreement and the transactions contemplated hereby, (ii) permit the Rights to become nonredeemable at the redemption price currently in effect, or (iii) take any accounts receivableaction which would allow any Person other than Parent or Acquisition or any of their affiliates to become the Beneficial Owner (as defined in the Rights Agreement) of 15% or more of the Company Common Stock without causing a Distribution Date (as defined in the Rights Agreement) or a Shares Acquisition Date (as defined in the Rights Agreement) to occur or otherwise take any action which would render the Rights Agreement inapplicable to any transaction contemplated by such Person; (s) knowingly or intentionally take any action that results or is reasonably likely to result in any of the representations or warranties of the Company hereunder being untrue in any material respect; or (st) agree in writing to or otherwise make any commitment to do take any of the foregoingactions prohibited by this Section 4.2.

Negative Covenants of the Company. Except During the Pre-Closing Period, without the prior written consent of the Purchaser (such consent to not be unreasonably withheld, conditioned or delayed), except as otherwise expressly contemplated by this Agreement or otherwise consented to in writing by Acquiror, from the date hereof until the Closing DateAgreement, the Company shall not, and shall cause each Company Subsidiary not to, do any of the following: (a) declare enter into, amend or pay modify in any dividend onmaterial respect, or make terminate prior to the scheduled termination date set forth therein, any Material Contract, or otherwise waive, release, assign, cancel or compromise any material debt, claim, benefit, obligation or right, or bxxx and collect accounts receivable other distribution in respect of, outstanding shares of its capital stockthan consistent with past practice; (ib) redeem, repurchase make any capital expenditure or otherwise reacquire enter into any shares commitment therefor in excess of its capital stock or other securities or any securities or obligations convertible into or exchangeable $100,000 for any share single expenditure or series of its capital stock or other securities, or any options, warrants or conversion or other rights to acquire any shares of its capital stock or other securities or any such securities or obligations (except in connection with the exercise of outstanding Options in accordance with their respective terms); (ii) effect any merger, consolidation, restructuring, reorganization or recapitalization, or adopt a plan of complete or partial liquidation or dissolution; or (iii) adjust, split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its capital stock or other securitiesrelated expenditures; (c) (i) change its authorized or issued capital stock, (ii) transfer, issue, pledge, deliver, award, grant or sell, or register under the Securities Act or the Exchange Act or otherwise file any registration statement under any statute coveringdispose of, or authorize or propose the issuance, pledge, delivery, award, grant or sale of (including the grant of any Encumbrances on) or registration of or filing of any registration statement covering any shares of capital stock, debt security, warrant, option, call, right to purchase or similar right regarding its capital stock; purchase, redeem, retire or otherwise acquire, or offer to purchase, redeem or otherwise acquire any class of shares of its capital stock, (iii) declare, set aside or pay any dividend or make any distribution (whether payable in cash, stock or property) or payment in respect of its capital stock, except for cash dividends that do not reduce Final Closing Cash below zero dollars, (iv) split, subdivide, recapitalize, combine or reclassify its capital stock or other securities (including shares held in treasury), any securities convertible v) enter into or exercisable modify any agreement or exchangeable for Contract with any such shares or other securities, Company Shareholder or any rights, warrants or options to acquire any such shares or other securities (except in connection with the exercise of outstanding Options); or (ii) amend or otherwise modify the terms Affiliate of any such rights, warrants or optionsCompany Shareholder; (d) acquire or agree to acquire, by merging or consolidating with, by purchasing an equity interest in or a portion amend any of the assets of, or by any other manner, its Organizational Documents; (e) (i) hire or terminate any business employee, consultant or any corporation, partnership, association or other business organization or division director (other than a whollyexcept for the hiring of non-owned Subsidiary of the Company) thereof; (ii) make or commit to make any capital expenditures other than capital expenditures not exceeding in the executive employees with aggregate Fifty Thousand Dollars (annual compensation below $50,000.00) and which are solely for equipment, furniture and fixtures incurred 150,000 hired in the ordinary course of business consistent with past practices; business), (ii) increase or (iii) make establish, or commit to make any loansincrease or establish, advances whether orally or capital contributions to, or investments inin writing, any other Person. form of compensation or benefits payable by the Company, including without limitation, pursuant to any Company Benefit Plan (e) sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise encumber or dispose of, any of its assets, except for sales of inventory in the ordinary course of business and consistent with past practices; (i) except as otherwise contemplated required by this Agreement or as required to comply with applicable lawany Law), (iiiii) adopt, enter into, establish, amend, modify or terminate any Company Benefit Plan (other than modifications that may be required to comply with Law) or amend in increase the benefits provided thereunder, (iv) accelerate the vesting or payment of any material respect (A) compensation or benefits under any Company Benefit Plan or (Bv) grant any other agreement, plan equity or policy involving the Company or the Company Subsidiaries, and one or more of its current or former directors, officers or employees; (iii) increase in any manner the compensation, bonus or fringe or other benefits of, or pay any bonus to, any current or former officer, director or employee (except for normal increases of cash compensation or cash bonuses in the ordinary course of business consistent with past practice that, in the aggregate, do not materially increase benefits or compensation expenses of the Company or the Company Subsidiaries); (iv) pay any benefit or amount not required under any Company Benefit Plan equity-linked awards or any other benefit plan or arrangement of the Company or the Company Subsidiaries as in effect on the date of this Agreement; (v) increase in any manner the severance or termination pay of any current or former director, officer or employee; (vi) enter into or amend any employment, deferred compensation, consulting, severance, termination or indemnification agreement, arrangement or understanding with any current or former employee, officer or director; (vii) grant any awards under any cash bonus, incentive, performance or other incentive compensation plan plan; (f) enter into, modify or arrangement terminate any employment, termination, labor or Benefit Plan (including collective bargaining agreement of the grant of stock optionsCompany or, "phantom" stockthrough negotiations or otherwise, stock appreciation rights, "phantom" stock rights stock based make any commitment or stock related awards, performance units or restricted stock or the removal of existing restrictions in incur any Company Benefit Plans or agreements or awards made thereunder); (viii) amend or modify any Option, (ix) take any action liability to fund or in any other way secure the payment of compensation or benefits under any employee planor labor organizations or announce, agreementimplement or effect any reduction in labor force, contract or arrangement or Benefit Plan; (x) take any action to accelerate the vesting of payment of any compensation or benefit under any Company Benefit Plan or (xi) materially change any actuarial lay-off, early retirement program, severance program or other assumption used to calculate funding obligations with respect to any pension plan program or change effort concerning the manner in which contributions to any pension plan are made or termination of employment of employees of the basis on which such contributions are determinedCompany; (g) propose (i) incur, redeem or adopt assume any amendments long-term or short-term indebtedness for borrowed money, enter into any hedging or off balance sheet financing arrangements, or assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (ii) make any loan, advance or capital contribution to, or investment in, any other Person, or (iii) subject to its certificate any Lien any of the properties or articles assets (whether tangible or intangible) of incorporation the Company, except for Permitted Liens and Liens that will be released at or its bylawsprior to the Closing; (h) enter into any transaction that would be required to be disclosed under Section 3.17 (Related Party Transactions); (i) make (i) acquire (whether pursuant to merger, stock or asset purchase or otherwise) any change in material properties or assets, (ii) sell, assign, license, transfer, convey, lease or otherwise dispose of any of the properties or assets of the Company (except for the purpose of disposing of obsolete or worthless assets or in connection with the Merger), (iii) abandon, fail to maintain or allow to expire (other than at the natural expiration of its methods of accountingterm), or sell or exclusively license to any Person, any material Intellectual Property, or (iiiv) make adopt a plan of complete or rescind any express partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or deemed election relating to Taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes, or other reorganization of the Company (other than the Merger); (j) change any of the accounting methods used by the Company materially affecting its methods of reporting income assets, liabilities or deductions business, except for federal income tax purposes from those employed in the preparation of the federal income tax returns for the taxable year ended December 31, 1998, except, in the case of clause (i) or clause (ii)such changes required by GAAP, as may be required concurred in by law or GAAPits independent public accountants; (i) incur enter into any Indebtednessagreement or arrangement that materially limits or otherwise materially restricts the Company or, upon completion of the Merger, the Purchaser or prepayits Subsidiaries or any successor thereto from engaging or competing in any line of business or in any location, before (ii) permit any material insurance policy naming the scheduled maturity thereof, any long-term debtCompany as a beneficiary or a loss payee to be cancelled or terminated without reasonable prior notice to the Purchaser or (iii) materially modify the Company’s standard warranty terms for its services and products; (jl) engage commence any Proceeding against any other Person or compromise, settle, pay or discharge any Proceeding or dispute (including any settlement or consent to settlement of any material Tax claim); provided, however, that: (i) the consent of the Purchaser shall not be required with respect to the settlement of any Proceeding or dispute by the Company if such settlement: (A) involves solely a cash settlement payment to the Person with which the settlement is being effected that is paid out of cash on hand at the Company, (B) provides for the full and unconditional release of the Company from any and all Liability in any transaction withrespect of the matters underlying such settlement, and (C) does not: (1) include an admission of guilt on the part of the Company, or (2) impose any restrictions on the future conduct of the Company; (m) make, change or rescind any material Tax election, file any amended material Tax Return, enter into any closing agreement or settle any Tax audit or proceeding relating to the Company, surrender any right to claim a refund for a material amount of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company, or settle or compromise any Tax liability if such action would have the effect of increasing the Tax liability or adversely affecting the Tax position of the Purchaser or the Surviving Corporation in a taxable period beginning after the Closing Date or the post-Closing portion of any Straddle Period; or (n) enter into any agreement, arrangement, or understanding with, directly or indirectly, any of such entity's Affiliates which involves the transfer of consideration or has a financial impact on such entity, other than pursuant to such agreements, arrangements, or understandings existing on the date of this Agreement; (k) enter into any contract, agreement, commitment, arrangement, lease (including with respect to personal property), policy commitment or other instrument which, had it been entered into as of the date hereof, would have been included as a Company Material Contract; (l) enter into any contracts, agreements, binding arrangements or understandings relating to the distribution, sale, license, marketing or manufacturing by third parties of the products of the Company or the Company Subsidiaries, or products licensed by the Company or the Company Subsidiaries, other than pursuant to any such contracts, agreements, arrangements or understandings in place as of the date of this Agreement (that have been disclosed in writing to Acquiror prior to the date hereof) in accordance with their terms as of the date hereof; (m) except for transactions in the ordinary course of business, terminate, or amend or waive any provision of, any Company Material Contract; (i) pay, discharge, settle or satisfy any claims, liabilities, obligations or litigation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge, settlement or satisfaction in the ordinary course of business consistent with past practice of claims for money damages which do not exceed Fifty Thousand Dollars ($50,000) in the aggregate or in accordance with their terms or liabilities disclosed, reflected or reserved against in the most recent consolidated financial statements (or the notes thereto) of the Company included in the Company SEC Reports; (ii) cancel any indebtedness; (iii) waive or assign any claims or rights of material value or (iv) waive any benefits of, or agree to modify in any respect (A) any standstill or similar agreements to which the Company or any of the Company Subsidiaries is a party or (B) other than in the ordinary course of business, any confidentiality or similar agreements to which the Company or any of the Company Subsidiaries is a party; (o) transfer or license to any Person or otherwise extend, amend or modify any rights to the Company Intellectual Property; (p) take any action that is intended or would reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VIII not being satisfied or in a violation of any provision of this Agreement; (q) take any action that would be reasonably likely to prevent the Merger from being accounted for as a "pooling of interests" in accordance with GAAP; (r) accelerate the collection of any accounts receivable; or (s) agree in writing or otherwise arrangement to do any of the foregoing, or authorize anything prohibited by this Section 5.3.