Common use of Operations Since Balance Sheet Date Clause in Contracts

Operations Since Balance Sheet Date. (a) Since the Balance Sheet Date, there has been: (i) no material adverse change in the assets, business, operations, liabilities, profits or financial condition of the Company, and, to the Knowledge of the Executives, no fact or condition exists or is contemplated or threatened that would reasonably be expected to have a Material Adverse Effect; and (ii) no damage, destruction, loss or claim, whether or not covered by insurance, or condemnation or other taking that would reasonably be expected to have a Material Adverse Effect. (b) Since September 30, 2007, the Company has, in all material respects, conducted its business only in the ordinary course and in conformity with past practice. Without limiting the generality of the foregoing, since September 30, 2007, the Company has not: (i) (A) declared, set aside or paid any dividends on, or made any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise made any payments to its Stockholders in their capacity as such, (B) split, combined or reclassified any of its capital stock or issued, sold or authorized the issuance of any other securities in respect of, in lieu of or in substitution for any Shares (other than any issuances of its securities upon the conversion of any outstanding Company Preferred Stock, or upon the exercise of any Company Stock Options or Company Warrants) or (C) purchased, redeemed or otherwise acquired any Shares or any other securities of the Company; (ii) made any material change in the business or operations of the Company; (iii) amended the Company Charter or the Company’s bylaws; (iv) acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof; (v) altered through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; (vi) made or incurred any capital expenditure or expenditures which, individually, is in excess of $30,000 or, in the aggregate, are in excess of $100,000; (vii) sold, leased (as lessor), transferred or otherwise disposed of, or mortgaged or pledged, or imposed or suffered to be imposed any Encumbrance on, any of the assets or properties of the Company, other than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice and other than Permitted Encumbrances and product licenses granted by the Company to third parties in the ordinary course of business, consistent with past practice; (viii) cancelled any debts owed to or claims held by the Company (including the settlement of any claims or litigation) or waived any other rights held by the Company other than in the ordinary course of business consistent with past practice; (ix) created, incurred or assumed, or agreed to create, incur or assume, any Indebtedness for Borrowed Money or entered into, as lessee, any capitalized lease obligation (as defined in Statement of Financial Accounting Standards No. 13); (x) accelerated or delayed collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected other than in the ordinary course of business consistent with past practice; (xi) delayed or accelerated payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such liability would have been paid other than in the ordinary course of business consistent with past practice and other than required scheduled payments in respect of Indebtedness for Borrowed Money outstanding on the Balance Sheet; (xii) made any change in the accounting principles and practices used by the Company from those applied in the preparation of the financial statements referred to on Schedule 5.4 except as required by generally accepted accounting principles; (xiii) prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods which would have the effect of deferring income to periods after the Closing Date or accelerating deductions to periods prior to the Closing Date); or (xiv) entered into any agreement or commitment to take any action listed in clauses (i)-(xiii) above.

Operations Since Balance Sheet Date. (a) Since the Balance Sheet Date, there has been: (i) no material adverse change in the assets, liabilities, business, operations, liabilities, profits condition (financial or financial condition otherwise) or results of operations of the CompanyCompany and its Subsidiaries, andtaken as a whole, and no fact or condition exists or, to the Knowledge of the ExecutivesSeller, no fact or condition exists or is contemplated or threatened that would which might reasonably be expected to have cause such a Material Adverse Effectchange in the future; and (ii) no damage, destruction, loss or claim, whether or not covered by insurance, or condemnation or other taking that would reasonably be expected to have adversely affecting in any material respect any of the assets, business, operations or condition of the Company and its Subsidiaries, taken as a Material Adverse Effectwhole. (b) Since September 30Except as set forth in Schedule 4.5 and in Section 7.6, 2007since the ------------ ----------- Balance Sheet Date, the Company has, in all material respects, and its Subsidiaries have conducted its their business only in the ordinary course and in conformity with past practice. Without practice and, without limiting the generality of the foregoing, since September 30, 2007, the Company has have not: (i) (A) declared, set aside or paid any dividends on, or made any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise made any payments to its Stockholders in their capacity as such, (B) split, combined or reclassified any of its capital stock or issued, sold or authorized the issuance of any other securities in respect of, in lieu of or in substitution for any Shares (other than any issuances of its securities upon the conversion of any outstanding Company Preferred Stock, or upon the exercise of any Company Stock Options or Company Warrants) or (C) purchased, redeemed or otherwise acquired any Shares or any other securities of the Company; (ii) made any material change in the business or operations of the Company; (iii) amended the Company Charter or the Company’s bylaws; (iv) acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof; (v) altered through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; (vi) made or incurred any capital expenditure or expenditures which, individually, is in excess of $30,000 or, in the aggregate, are in excess of $100,000; (vii) sold, leased (as lessor), transferred or otherwise disposed ofof (including any transfers from the Company or any Subsidiary to the Seller or any of its Affiliates), or mortgaged or pledged, or imposed or suffered to be imposed any Encumbrance (other than a Permitted Encumbrance) on, any of the assets reflected on the Balance Sheet or properties any assets acquired by the Company or any Subsidiary after the Balance Sheet Date, except for (i) inventory in the ordinary course of the Company, other than inventory and business consistent with past practice or (ii) minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice and other than Permitted Encumbrances and product licenses granted by the Company to third parties in the ordinary course of business, consistent with past practice; (viiiii) cancelled canceled any debts owed to or claims held by the Company or any Subsidiary (including the settlement of any claims or litigation) or waived any other rights held by the Company or any Subsidiary, other than in the ordinary course of business consistent with past practice; (ixiii) paid any claims against the Company or any Subsidiary (including the settlement of any claims and litigation against the Company or any Subsidiary or the payment or settlement of any obligations or liabilities of the Company or any Subsidiary) other than in the ordinary course of business consistent with past practice; (iv) created, incurred or assumed, or agreed to create, incur or assume, any Indebtedness indebtedness for Borrowed Money borrowed money or entered into, as lessee, any capitalized lease obligation obligations (as defined in Statement of Financial Accounting Standards No. 13); (xv) accelerated or delayed collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected other than in the ordinary course of business consistent with past practice; (xivi) delayed or accelerated payment of any account payable or other liability of the Company or any Subsidiary beyond or in advance of its due date or the date when such liability would have been paid other than in the ordinary course of business consistent with past practice and other than required scheduled payments in respect of Indebtedness for Borrowed Money outstanding on the Balance Sheetpractice; (xiivii) acquired any real property or undertaken or committed to undertake capital expenditures which exceed $250,000 in the aggregate; (viii) made, or agreed to make, any payment of cash or distribution of assets to the Seller or any of its Affiliates, or entered into, or agreed to enter into, any agreement or transaction with the Seller, any Affiliate of the Seller or any member of the immediate family of any Affiliate of the Seller; (ix) instituted any increase in any compensation payable to any officer or employee of the Company or any Subsidiary or in any profit- sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other benefits made available to officers or employees of the Company or any Subsidiary; (x) made any change in the accounting principles and practices used by the Company from those applied in the preparation of the financial Balance Sheet and the related statements referred to of income and cash flow for the period ended on Schedule 5.4 except as required by generally accepted accounting principlesthe Balance Sheet Date; (xiiixi) prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election election, or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including including, without limitation, positions, elections or methods which would have the effect of deferring income to periods after for which the Closing Date Seller is not liable pursuant to Section 9.1 or accelerating deductions to periods prior for ----------- which the Seller is liable pursuant to the Closing DateSection 9.1); oror ----------- (xivxii) entered into or become committed to enter into any agreement or commitment to take any action listed other material transaction except in clauses (i)-(xiii) abovethe ordinary course of business.

Operations Since Balance Sheet Date. (a) Since the Balance Sheet Date, the business of the Company has been conducted in the ordinary course of business, and there has not been, in respect of the Company and its Subsidiaries, unless set forth on Schedule 5.6: (i) no any material adverse change in the assets, business, operations, liabilities, profits or financial condition of the Company, and, to the Knowledge of the Executives, no fact or condition exists or is contemplated or threatened that would reasonably be expected to have a Material Adverse Effect; and; (ii) no any damage, destruction, loss or claim, whether or not covered by insurance, or condemnation or other taking taking, individually or in the aggregate, that would reasonably be expected is material to have a Material Adverse Effectthe business or operations of the Company. (b) Since September 30, 2007, the Company has, in all material respects, conducted its business only in the ordinary course and in conformity with past practice. Without limiting the generality of the foregoing, since September 30, 2007, the Company has not: (iiii) (A) declaredother than to the Company or any other Subsidiary, any declaration, set aside or paid payment of any dividends on, or made making of any other actual, constructive or deemed distributions in respect of, any of its capital stockequity, or otherwise made any payments to its Stockholders the Members in their capacity as such, (B) split, combined combination or reclassified reclassification of any of its capital stock equity interest or issuedissuance, sold sale or authorized authorization of the issuance of any other securities in respect of, in lieu of or in substitution for any Shares (other than any issuances of its securities upon the conversion of any outstanding Company Preferred Stock, or upon the exercise of any Company Stock Options or Company Warrants) Units or (C) purchasedpurchase, redeemed redemption or otherwise acquired other acquisition of any Shares Interests or any other securities of the Companysecurities; (iiiv) made any material change in the business or operations of the CompanyCompany or any Subsidiary; (iiiv) amended any amendment to the Company Charter or the Company’s bylawsbylaws or the similar documents of any Subsidiary; (ivvi) acquired any acquisition or agreed agreement to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof; (vvii) altered alteration through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; (viviii) made or incurred any capital expenditure or expenditures which, individually, is in excess of $30,000 5,000 or, in the aggregate, are in excess of $100,00010,000; (viiix) soldsale, leased lease (as lessor), transferred transfer or otherwise disposed other disposition of, or mortgaged mortgage or pledgedpledge, or imposed imposition or suffered sufferance to be imposed any Encumbrance on, any of the assets or properties of the CompanyCompany or a Subsidiary, other than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice and other than Permitted Encumbrances and product licenses granted by the Company to third parties in the ordinary course of business, consistent with past practice; (viiix) cancelled cancellation of any debts owed to or claims held by the Company (including the settlement of any claims or litigation) or waived waiver of any other rights held by the Company other than in the ordinary course of business consistent with past practice; (ixxi) createdcreation, incurred incurrence or assumedassumption, or agreed agreement to create, incur or assume, any Indebtedness for Borrowed Money or entered into, as lessee, any capitalized lease obligation (as defined in Statement of Financial Accounting Standards No. 13); (xxii) accelerated acceleration or delayed delay in the collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected other than in the ordinary course of business consistent with past practice; (xixiii) delayed delay or accelerated acceleration of any payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such liability would have been paid other than in the ordinary course of business consistent with past practice and other than required scheduled payments in respect of Indebtedness for Borrowed Money outstanding on the Balance Sheetpractice; (xiixiv) made any change in the accounting principles and practices used by the Company from those applied in the preparation of the financial statements referred to on Schedule 5.4 except as required by generally accepted accounting principles; (xiiixv) prepared preparation or filed filing of any Tax Return inconsistent with past practice or, on any such Tax Return, taken taking any position, made making any election or adopted adopting any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods which would have the effect of deferring income to periods after the Closing Date or accelerating deductions to periods prior to the Closing Date); or (xivxvi) entered entry into any agreement or commitment to take any action listed in clauses (i)-(xiiii)-(xv) above.

Operations Since Balance Sheet Date. (a) Since Except as set forth in Schedule 3.14, since the Balance Sheet Date, there has been: (i) no material adverse change in the assets, business, operations, liabilities, profits or financial condition of the Company, and, to the Knowledge of the Executives, no fact or condition exists or is contemplated or threatened that would reasonably be expected to have a Material Adverse Effect; and (ii) no damage, destruction, loss or claim, whether or not covered by insurance, or condemnation or other taking that would reasonably be expected to have a Material Adverse Effect. (b) Since September 30, 2007, the Company has, in all material respects, conducted its business only in the ordinary course and in conformity with past practice. Without limiting the generality of the foregoing, since September 30, 2007, the Company has not: (i) (A) declared, set aside or paid any dividends on, or made any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise made any payments to its Stockholders in their capacity as such, (B) split, combined or reclassified any of its capital stock or issued, sold or authorized the issuance of any other securities in respect of, in lieu of or in substitution for any Shares (other than any issuances of its securities upon the conversion of any outstanding Company Preferred Stock, or upon the exercise of any Company Stock Options or Company Warrants) or (C) purchased, redeemed or otherwise acquired any Shares or any other securities of the Company; (ii) made any material change in the business or operations of the Company; (iii) amended the Company Charter or the Company’s bylaws; (iv) acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof; (v) altered through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; (vi) made or incurred any capital expenditure or expenditures which, individually, is in excess of $30,000 or, in the aggregate, are in excess of $100,000; (viia) sold, leased (as lessor), transferred or otherwise disposed of, or mortgaged or pledged, or imposed or suffered to be imposed any Encumbrance Liens on, any of the assets reflected on the Base Balance Sheet or properties of any assets acquired by the CompanyCompany after the Base Balance Date, other than except for inventory and minor non-material amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice and other than except for Permitted Encumbrances and product licenses granted by the Company to third parties in the ordinary course of business, consistent with past practiceLiens; (viiib) entered into, terminated or received notice of termination of any contract or transaction involving a total remaining commitment by or to the Company of at least $25,000 individually or $100,000 in the aggregate with respect to all other such contracts or transactions; (c) cancelled any debts owed to or claims held by the Company it (including the settlement of any claims or litigation) or waived any other rights held by the Company other than (i) in the ordinary course of business consistent business, (ii) with past practicerespect to any loans made to employees of the Company, in the case of (i) and (ii), none of which with a value in excess of $25,000 individually or $100,000 in the aggregate, or (iii) Intercompany Balances; (ixd) created, incurred incurred, assumed, or assumedguaranteed, or agreed to create, incur incur, assume or assume, guaranty any Indebtedness indebtedness for Borrowed Money borrowed money or entered into, as lessee, any capitalized lease obligation obligations (as defined in Statement of Financial Accounting Standards No. 13); (xe) accelerated materially changed the financial or delayed tax accounting methods or practices used by the Company (including with respect to reserves), written up or written down any of its material assets or revalued its inventory, materially changed its cash management practices except as contemplated by Section 7.5 hereof and procedures (including with respect to the timing and frequency of collection of receivables and paying of payables), materially changed its advance subscription renewal practices, made, changed or revoked any notes material tax election or accounts receivable entered into any contract in advance respect of taxes with any governmental body; (f) experienced any material loss, destruction, damage or beyond their regular due dates eminent domain taking (in each case, whether or not insured) affecting the dates when business of the same would have been collected Company or any material asset; (g) instituted or agreed to institute any material increase in any compensation payable to any employee of the Company or in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other benefits made available to employees of the Company other than in the ordinary course of business consistent with past practicebusiness; (xi) delayed or accelerated payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such liability would have been paid other than in the ordinary course of business consistent with past practice and other than required scheduled payments in respect of Indebtedness for Borrowed Money outstanding on the Balance Sheet; (xii) made any change in the accounting principles and practices used by the Company from those applied in the preparation of the financial statements referred to on Schedule 5.4 except as required by generally accepted accounting principles; (xiii) prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods which would have the effect of deferring income to periods after the Closing Date or accelerating deductions to periods prior to the Closing Date); or (xivh) entered into any agreement or commitment to take do any action of the foregoing listed in clauses this Section 3.14; or (i)-(xiiii) abovesuffered a Material Adverse Effect.

Operations Since Balance Sheet Date. (a) Since Except as set forth in Schedule 4.5, since the Balance Sheet Date, there has been: (i) no material adverse change in the assets, business, operations, liabilities, profits profits, prospects or condition (financial condition or otherwise) of the Company, and, to the Knowledge of the Executives, and no fact or condition exists or is contemplated or threatened that would which might reasonably be expected to have cause such a Material Adverse Effectchange in the future; and (ii) no damage, destruction, loss or claim, whether or not covered by insurance, or condemnation or other taking that would reasonably be expected to have a Material Adverse Effectadversely affecting any of the assets, business, operations, condition or prospects of the Company. (b) Since September 30Except as set forth in Schedule 4.5, 2007since the Balance Sheet Date, the Company has, in all material respects, has conducted its business only in the ordinary course and in conformity with past practice. Without practice and, without limiting the generality of the foregoing, since September 30, 2007, the Company has not: (i) (A) declared, set aside declared or paid any reserve, premium or interim dividends on, or made any other actual, constructive or deemed distributions in respect of, any of its capital stock, or otherwise made any payments to its Stockholders in their capacity as such, (B) split, combined or reclassified any of its capital stock or issued, sold or authorized the issuance of any other securities in respect of, in lieu of or in substitution for any Shares (other than any issuances of its securities upon the conversion of any outstanding Company Preferred Stock, or upon the exercise of any Company Stock Options or Company Warrants) or (C) purchased, redeemed or otherwise acquired any Shares or any other securities of the Companyshareholders; (ii) made any material change in the business or operations of the Company; (iii) amended the Company Charter or the Company’s bylaws; (iv) acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof; (v) altered through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; (vi) made or incurred any capital expenditure or expenditures which, individually, is in excess of $30,000 or, in the aggregate, are in excess of $100,000; (vii) sold, leased (as lessor), transferred or otherwise disposed ofof (including any transfers from the Company to any Seller), or mortgaged or pledged, or imposed or suffered to be imposed any Encumbrance on, any of the assets reflected on the Balance Sheet or properties of any assets acquired by the CompanyCompany after the Balance Sheet Date, other than except for inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice and other than Permitted Encumbrances and product licenses granted by the Company to third parties in the ordinary course of business, consistent with past practice; (viiiiii) cancelled canceled any debts owed to or claims held by the Company (including the settlement of any claims or litigation) or waived any other rights held by the Company other than in the ordinary course of business consistent with past practice; (ixiv) paid any claims against the Company (including the settlement of any claims and litigation against the Company or the payment or settlement of any obligations or liabilities of the Company) other than in the ordinary course of business consistent with past practice; (v) created, incurred or assumed, or agreed to create, incur or assume, any Indebtedness indebtedness for Borrowed Money borrowed money or entered into, as lessee, any capitalized lease obligation (as defined obligations in Statement excess of Financial Accounting Standards No. 13)¬10,000 individually or ¬25,000 in aggregate; (xvi) accelerated or delayed collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected other than in the ordinary course of business consistent with past practice; (xivii) delayed or accelerated payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such liability would have been paid other than in the ordinary course of business consistent with past practice and practice; (viii) allowed the levels of raw materials, supplies, work-in-process or other than required scheduled payments materials included in the inventory of the Company to vary in any material respect from the levels customarily maintained; (ix) acquired any real property or undertaken or committed to undertake capital expenditures exceeding ¬10,000 individually or ¬25,000 in the aggregate; (x) made, or agreed to make, any payment of Indebtedness for Borrowed Money outstanding on cash or distribution of (xi) instituted any increase in any compensation payable to any officer or employee of the Balance SheetCompany or in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other benefits made available to officers or employees of the Company; (xii) made any change in the accounting principles and practices used by the Company from those applied in the preparation of the financial Balance Sheet and the related statements referred to of income and cash flow for the period ended on Schedule 5.4 except as required by generally accepted accounting principlesthe Balance Sheet Date; (xiii) entered into or become committed to enter into any other material transaction except in the ordinary course of business; or (xiv) prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election election, or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including including, without limitation, positions, elections or methods which would have the effect of deferring income to periods after the Closing Date for which Buyer is liable pursuant to Section 9.1(b) or accelerating deductions to periods prior for which Sellers are liable pursuant to the Closing DateSection 9.1(a); or (xiv) entered into any agreement or commitment to take any action listed in clauses (i)-(xiii) above.;

Operations Since Balance Sheet Date. (a) Since Except as set forth in Section 3.5 of the Company Disclosure Schedule, since the Balance Sheet Date, there has been: (i) no material adverse change in the assets, business, operations, liabilities, profits or financial condition of the Company, and, to the Knowledge of the Executives, no fact or condition exists or is contemplated or threatened that would reasonably be expected to have a Material Adverse Effect; and (ii) no damage, destruction, loss or claim, whether or not covered by insurance, or condemnation or other taking that would reasonably be expected to have a Material Adverse Effect. (b) Since September 30, 2007, Date the Company has, in all material respects, has conducted its business only in the ordinary course and in conformity consistent with past practice. Without limiting the generality of the foregoing, since September 30, 2007, the Company and there has notnot occurred: (ia) any change, event, development or condition (Awhether or not covered by insurance) declared, set aside or paid any dividends onthat has resulted in, or made any other actualcould reasonably be expected to result in, constructive or deemed distributions in respect of, any of its capital stock, or otherwise made any payments to its Stockholders in their capacity as such, (B) split, combined or reclassified any of its capital stock or issued, sold or authorized the issuance of any other securities in respect of, in lieu of or in substitution for any Shares (other than any issuances of its securities upon the conversion of any outstanding Company Preferred Stock, or upon the exercise of any Company Stock Options or Company Warrants) or (C) purchased, redeemed or otherwise acquired any Shares or any other securities of a Material Adverse Effect on the Company; (iib) made any acquisition, sale or transfer of any material change in the business or operations asset of the Company; (iii) amended the Company Charter or the Company’s bylaws; (iv) acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, limited liability company, association or other business organization or division thereof; (v) altered through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; (vi) made or incurred any capital expenditure or expenditures which, individually, is in excess of $30,000 or, in the aggregate, are in excess of $100,000; (vii) sold, leased (as lessor), transferred or otherwise disposed of, or mortgaged or pledged, or imposed or suffered to be imposed any Encumbrance on, any of the assets or properties of the Company, other than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice and other than Permitted Encumbrances and product licenses granted by the Company to third parties in the ordinary course of business, consistent with past practice; (viii) cancelled any debts owed to or claims held by the Company (including the settlement of any claims or litigation) or waived any other rights held by the Company other than in the ordinary course of business and consistent with past practice; (ixc) created, incurred or assumed, or agreed to create, incur or assumeexcept as required by GAAP, any Indebtedness for Borrowed Money material change in accounting methods or entered into, as lessee, practices (including any capitalized lease obligation (as defined change in Statement depreciation or amortization policies or rates) by the Company or any revaluation by the Company of Financial Accounting Standards No. 13)any of its assets; (xd) accelerated any declaration, setting aside, or delayed collection payment of a dividend or other distribution with respect to the shares of capital stock of the Company or any direct or indirect redemption, purchase or other acquisition by the Company of any notes or accounts receivable in advance of or beyond their regular due dates or its shares of capital stock; (e) any Listed Contract entered into by the dates when the same would have been collected Company, other than in the ordinary course of business consistent with past practicebusiness, or any amendment or termination of, or material default under, any Listed Contract, or the waiver, release or assignment of any material rights under any Listed Contract; (xif) delayed any incurrence, assumption or accelerated payment guarantee by the Company of any account payable indebtedness for borrowed money; (g) any creation or assumption by the Company of any mortgage, lien, pledge, charge, security interest or similar encumbrance of any kind or character on any material asset, other than Permitted Encumbrances; (h) any condemnation, seizure, damage, destruction or other liability casualty loss (whether or not covered by insurance) materially and adversely affecting the assets, properties or business of the Company beyond and no such loss is threatened in writing; (i) any capital expenditure, or commitment for a capital expenditure, for additions or improvements to property, plant and equipment in advance excess of its due date $25,000 individually or $50,000 in the date when such liability would have been paid aggregate; (j) except for capital expenditures and commitments referred to in paragraph (i) above, any (i) acquisition, lease, license or other than purchase of, or (ii) disposition, assignment, transfer, license or other sale of, any material tangible assets or material property or material Intellectual Property in one or more transactions, or any commitment in respect thereof; (k) a cancellation or compromise of any material debt or claim; (l) any settlement or compromise of any pending or threatened Action; (m) any material delay or postponement by the Company in the payment of accounts payable and other liabilities outside the ordinary course of business consistent with past practice and other than required scheduled payments in respect of Indebtedness for Borrowed Money outstanding on the Balance Sheet; (xii) made any change in the accounting principles and practices used by the Company from those applied in the preparation of the financial statements referred to on Schedule 5.4 except as required by generally accepted accounting principles; (xiii) prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods which would have the effect of deferring income to periods after the Closing Date or accelerating deductions to periods prior to the Closing Date)business; or (xivn) entered into any negotiation or agreement or commitment by the Company to take do any action listed of the things described in the preceding clauses (i)-(xiiia) abovethrough (m) (other than negotiations with the Optionee and its representatives regarding the transactions contemplated by this Agreement).

Operations Since Balance Sheet Date. Except as disclosed in Schedule 5.7, since June 30, 2010 through the date hereof, (a) Since there has been no Material Adverse Effect and (b) none of the Acquired Companies has granted any material increase in salary or bonus or otherwise materially increased the compensation or benefits payable or provided to any Affected Employee, other than as a result of promotions in the ordinary course of business. Except as disclosed in Schedule 5.7, since the Balance Sheet Date, there has been: (i) no material adverse change in Date through the assets, business, operations, liabilities, profits or financial condition of the Company, and, to the Knowledge of the Executives, no fact or condition exists or is contemplated or threatened that would reasonably be expected to have a Material Adverse Effect; and (ii) no damage, destruction, loss or claim, whether or not covered by insurance, or condemnation or other taking that would reasonably be expected to have a Material Adverse Effect. (b) Since September 30, 2007date hereof, the Company has, in all material respects, Acquired Companies have conducted its business the Business only in the ordinary course and in conformity with past practiceall material respects. Without limiting the generality of the foregoing, except as set forth on Schedule 5.7, since September 30the Balance Sheet Date through the date hereof, 2007, none of the Company has notAcquired Companies has: (i) sold, transferred or assigned any assets or property (Atangible or intangible) declared, set aside or paid any dividends on, or made any other actual, constructive or deemed distributions with an aggregate value in respect of, any excess of its capital stock, or otherwise made any payments to its Stockholders in their capacity as such, (B) split, combined or reclassified any of its capital stock or issued, sold or authorized the issuance of any other securities in respect of, in lieu of or in substitution for any Shares (other than any issuances of its securities upon the conversion of any outstanding Company Preferred Stock, or upon the exercise of any Company Stock Options or Company Warrants) or (C) purchased, redeemed or otherwise acquired any Shares or any other securities of the Company$250,000; (ii) made experienced any material change damage, destruction or loss (whether or not covered by insurance) to its assets or property (tangible or intangible) in excess of $250,000 in the business or operations of the Companyaggregate; (iii) amended the Company Charter no Person has accelerated, terminated, modified or the Company’s bylaws; (iv) acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by canceled any other manner, any business Material Contract or any corporationContract that, partnershipif it was in effect on the date hereof, limited liability company, association or other business organization or division thereof; (v) altered through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; (vi) made or incurred any capital expenditure or expenditures which, individually, is in excess of $30,000 or, in the aggregate, are in excess of $100,000; (vii) sold, leased (as lessor), transferred or otherwise disposed of, or mortgaged or pledged, or imposed or suffered to would be imposed any Encumbrance on, any of the assets or properties of the Companya Material Contract, other than inventory and minor amounts of personal property sold modifications to customer Contracts or otherwise disposed of for fair value in the ordinary course of business consistent with past practice and other than Permitted Encumbrances and product licenses granted by the Company to third parties Leases in the ordinary course of business; (iv) issued, consistent sold or otherwise disposed of any of its stock or other ownership interests, or granted any options, warrants or other rights to acquire (including upon conversion, exchange or exercise) any of its stock or other ownership interests or declared, set aside, made or paid any dividend or distribution with past practicerespect to its stock or other ownership interests or redeemed, purchased or otherwise acquired any stock or other ownership interest or amended or made any change to any of its organizational documents or made any other payment to its members or stockholders (or any Affiliates of such members or stockholders); (v) made any commitment outside of the ordinary course of business or in excess of $150,000 in the aggregate for capital expenditures to be paid after the Closing or failed to incur capital expenditures in accordance with its capital expense budget; (vi) instituted any material change in the conduct of its business or any material change in its accounting practices or methods, cash management practices or method of purchase, sale, lease, management, marketing, or operation; (vii) taken or omitted to take any action which could be reasonably anticipated to have a Material Adverse Effect; (viii) cancelled collected its accounts receivable or paid any debts owed to accrued liabilities or claims held by the Company (including the settlement of accounts payable or prepaid any claims expenses or litigation) or waived any other rights held by the Company items, in each case other than in the ordinary course of business consistent with past practice;business; or (ix) created, incurred agreed or assumed, or agreed committed to create, incur or assume, any Indebtedness for Borrowed Money or entered into, as lessee, any capitalized lease obligation (as defined in Statement of Financial Accounting Standards No. 13); (x) accelerated or delayed collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected other than in the ordinary course of business consistent with past practice; (xi) delayed or accelerated payment of any account payable or other liability of the Company beyond or in advance of its due date or the date when such liability would have been paid other than in the ordinary course of business consistent with past practice and other than required scheduled payments in respect of Indebtedness for Borrowed Money outstanding on the Balance Sheet; (xii) made any change in the accounting principles and practices used by the Company from those applied in the preparation of the financial statements referred to on Schedule 5.4 except as required by generally accepted accounting principles; (xiii) prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods which would have the effect of deferring income to periods after the Closing Date or accelerating deductions to periods prior to the Closing Date); or (xiv) entered into any agreement or commitment to take any action listed in clauses (i)-(xiii) aboveforegoing.