Common use of Ordinary Course Clause in Contracts

Ordinary Course. During the period from the date of this Agreement to the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(a) of the Company Disclosure Letter), the Company and its Subsidiaries shall carry on their businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company or its Subsidiaries, in each case consistent with past practice. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(a) of the Company Disclosure Letter, prior to the Effective Time, the Company and its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(a) in a reasonably timely fashion): (A) (I) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, (II) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (III) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (B) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock, or any Company Voting Debt (other than the issuance of Shares upon the exercise of Company Options outstanding on the date of this Agreement; (C) amend the Company’s certificate of incorporation or bylaws; (D) acquire or agree to acquire (I) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (II) any assets that would be material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice; (E) sell, lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or dispose of any of its properties or assets, except (I) in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in the aggregate; (F) (I) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries in the ordinary course of business consistent with past practice; (G) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; (H) make any material election relating to Taxes or settle or compromise any material Tax liability; (I) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoing; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (L) change any accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (O) authorize any of, or commit or agree to take any of, the foregoing actions.

Ordinary Course. During the period from the date of this Agreement to the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(a6.1(b) of the Company Parent Disclosure Letter), the Company Parent and its Subsidiaries shall carry on their businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company or Parent and its Subsidiaries, in each case consistent with past practice. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(a6.1(b)(i) of the Company Parent Disclosure Letter, prior to the Effective Time, the Company Time Parent and its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub the Company (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh in each case from the interests point of view of the operations of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant taken as a consentwhole), and Parent and Merger Sub the Company shall respond to any request for consent pursuant to this Section 6.1(a6.1(b) in a reasonably timely fashion): (A) (I) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, stock or (II) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (III) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesstock; (B) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock, or any Company Parent Voting Debt (other than (I) the issuance of Shares shares of Parent Common Stock upon the exercise of Company Options options or other stock awards outstanding on the date of this Agreement, or (II) pursuant to existing Parent Stock Plans in accordance with their current terms and past practice); (C) amend the CompanyParent’s certificate of incorporation or bylawsbylaws or amend Merger Sub’s certificate of formation or limited liability company agreement; (D) acquire directly or agree to acquire indirectly, (I) by merging or consolidating withenter into any transaction, or by purchasing a substantial portion other than the Merger, that would require approval of the stockstockholders of Parent under applicable Law or stock exchange rules; (II) enter into an agreement, or other ownership interests inthan this Agreement, or substantial portion of assets ofrelating to (x) any acquisition, or by any other mannermerger, any business or any corporation, partnership, associationconsolidation, joint venture, limited liability tender offer, share exchange, business combination with, or purchase of more than 20% of the equity securities or consolidated total assets of any asset-based trucking company or other entity or division thereof located in the United States or (IIy) acquisitions, mergers, consolidations, joint ventures, tender offers, share exchanges, business combinations with, or purchases of more than 20% of the equity securities or consolidated total assets of any assets other Person for a transaction value in excess of $50 million individually (provided, however, that the foregoing restriction shall not apply to transactions to which the HSR Act does not apply) or $120 million in the aggregate (determined, in each case, in accordance with Section 801.10 of the regulations adopted under the HSR Act); or (III) enter into any other transaction or take any other action that would reasonably be materialexpected to (x) adversely affect Parent’s ability to use available funds to perform all of its obligations under this Agreement and to consummate the Merger or (y) otherwise prevent, individually materially delay or in materially impair the aggregate, ability of Parent or Merger Sub to consummate the Company and its Subsidiaries, taken as a whole, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practicetransactions contemplated by this Agreement; (E) sell, lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or dispose of any of its properties or assets, except (I) in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in the aggregate; (F) (I) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries in the ordinary course of business consistent with past practice; (G) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; (H) make any material election relating to Taxes or settle or compromise any material Tax liability; (I) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate Parent or adopt a plan of complete or partial liquidation or Parent or adopt resolutions providing for or authorizing any of the foregoing; (KF) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (LG) change any accounting principle used by it, except as required by applicable Laws Law or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (OH) authorize any of, or commit or agree to take any of, the foregoing actions.

Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise expressly provided or permitted specifically contemplated by the terms of this Agreement or as set forth in Section 6.1(a) of the Company Disclosure LetterAgreement), the Company shall and shall cause its Subsidiaries shall "significant subsidiaries" (as that term is defined in the regulations promulgated under the Exchange Act) to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date of this Agreement, and, to the extent consistent therewith, use their all reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company or its Subsidiariesthem, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(athe (i) of the Company Disclosure Letter, prior to the Effective Time, the Company and its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(a) in a reasonably timely fashion): (A) (I) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to the Company or a wholly owned subsidiary of the Company and immaterial dividends, distributions and other similar transactions involving the existing subsidiaries, (IIB) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (IIIC) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than in connection with the exercise of outstanding stock options and satisfaction of withholding obligations under outstanding stock options or Company Shares issued pursuant to the Company's Restricted Stock Incentive Plan; (Bii) issue, deliver, grant, sell, pledge, dispose of pledge or otherwise encumber any shares of its capital stock stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, voting securities or any Company Voting Debt convertible securities (other than than, in the case of the Company, the issuance of Shares shares of Company Common Stock upon the exercise of Company Options stock options outstanding on the date of this AgreementAgreement in accordance with their current terms) and those stock option and restricted stock grants set forth in Section 4.1(a)(ii) of the Company Disclosure Schedule that may be made pursuant to a form of stock option agreement previously approved by EVI; (Ciii) amend the Company’s certificate 's Corrected Restated Certificate of incorporation Incorporation or bylawsAmended and Restated By-laws; (Div) except for those contemplated transactions described in the Company Disclosure Letter, acquire or agree to acquire (I) by merging or consolidating withany business, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (II) any assets that would be material, involving the payment of consideration in excess of $100 million individually or in the aggregateaggregate without the written consent of EVI, to which consent shall not be unreasonably withheld; (v) incur any obligation for borrowed money or purchase money indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument, except for such borrowings that would not result in the total outstanding indebtedness of the Company and its Subsidiaries, taken as subsidiaries on a whole, except purchases consolidated basis being in excess of supplies, equipment and inventory in the ordinary course of business consistent with past practice$300 million at any one time; (Evi) sell, lease, mortgage, pledge, xxxxx pledge or granx x Xxxx on xx or otherwise encumber or dispose of any of its properties or assets, except (IA) in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in the aggregate; (F) (I) incur any indebtedness for borrowed money sales or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries leases in the ordinary course of business consistent with past practice;, (B) as may be (G) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; (Hvii) make any material election relating to Taxes or settle or compromise any material Tax liability; (Iviii) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify for those contemplated corporate transactions described in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructureDisclosure Letter, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation of the Company or adopt any of its significant subsidiaries or resolutions providing for or authorizing any of the foregoingsuch a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (Lix) change any material accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with regulations promulgated by the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this AgreementSEC; or (Ox) authorize any of, or commit or agree to take any of, the foregoing actions.

Ordinary Course. During the period from the date of this Agreement to the Effective Time of the Merger (except as otherwise expressly provided or permitted specifically contemplated by the terms of this Agreement or as set forth in Section 6.1(a) of the Company Disclosure LetterAgreement), the Company EVI shall and shall cause each of its Subsidiaries shall carry on their businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company or its Subsidiaries, in each case consistent with past practice. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(asignificant subsidiaries (i) of the Company Disclosure Letter, prior to the Effective Time, the Company and its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(a) in a reasonably timely fashion): (A) (I) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of EVI to EVI or a wholly owned subsidiary of EVI and immaterial dividends, distributions and other similar transactions involving existing subsidiaries, (IIB) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (IIIC) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, acquire any shares of capital stock of the Company EVI or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than in connection with exercise of outstanding stock options and satisfaction of withholding obligations under outstanding stock options; (Bii) issue, deliver, grant, sell, pledge, dispose of pledge or otherwise encumber any shares of its capital stock stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, voting securities or any Company Voting Debt convertible securities other than, in the case of EVI, (other than A) the issuance of Shares EVI Common Stock upon the exercise of Company Options stock options outstanding on the date of this AgreementAgreement in accordance with their current terms, (B) those acquisitions described in Section 4.2 of the EVI Disclosure Schedule, or (C) the issuance of a number of shares of EVI Common Stock, not to exceed 10% of the number of shares of EVI Common Stock currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses; (Ciii) amend the Company’s certificate EVI's Restated Certificate of incorporation Incorporation or bylawsBy-laws; (Div) except for those contemplated transactions described in the EVI Disclosure Letter, acquire or agree to acquire (I) by merging or consolidating withany business, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (II) any assets that would be materialinvolving the payment of consideration, individually or in the aggregateaggregate for all such acquisitions, to the Company and its Subsidiaries, taken as a whole, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice; (E) sell, lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or dispose of any of its properties or assets, except (I) in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in 250 million without the aggregatewritten consent of the Company, which consent shall not be unreasonably withheld; (F) (Iv) incur any indebtedness obligation for borrowed money or guarantee any such indebtedness of another Personpurchase money indebtedness, issue whether or sell any debt securities not evidenced by a note, bond, debenture or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoingsimilar instrument, except for (x) working capital such borrowings and letters of credit under revolving credit facilities incurred that would not result in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries in the ordinary course of business consistent with past practice; (G) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; (H) make any material election relating to Taxes or settle or compromise any material Tax liability; (I) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoing; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (L) change any accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (O) authorize any of, or commit or agree to take any of, the foregoing actions.total

Ordinary Course. During (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 6.6(a) and except for the possible sale of the Company's paclitaxel business and assets, during the period from the date of this Agreement to the Effective Time Closing Date, (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(ai) of the Company Disclosure Letter)shall conduct, the Company and it shall cause its Subsidiaries shall carry on to conduct, its or their businesses in the usual, regular and ordinary course in substantially and consistent with past practice, and the same manner as conducted at the date of this AgreementCompany shall, and, to the extent consistent therewithand it shall cause its Subsidiaries to, use its or their reasonable best commercial efforts to preserve intact their current its business organizationsorganization, to keep available the services of their current its officers and employees and preserve their to maintain satisfactory relationships with customers, suppliers, licensors, licensees, distributors all persons with whom it does business and others having business dealings with the Company or its Subsidiaries, in each case consistent with past practice. Without (ii) without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(a) of neither the Company Disclosure Letter, prior to the Effective Time, the Company and nor any of its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(a) in a reasonably timely fashion):will: (A) (I) other than regularly scheduled quarterly dividends not amend or propose to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay amend its Organizational Documents in any dividends on, or make any other distributions in respect of, any of its capital stock, (II) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (III) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesmaterial respect; (B) authorize for issuance, issue, deliver, grant, sell, pledge, dispose of or otherwise encumber propose to issue, grant, sell, pledge or dispose of any shares of, or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any shares of, the capital stock or other securities of the Company or any of its Subsidiaries including, but not limited to, any securities convertible into or exchangeable for shares of stock of any class of the Company or any of its Subsidiaries, except for (a) the issuance of shares pursuant to the exercise of either incentive or non-qualified stock options, including management stock options outstanding the date of this Agreement in accordance with their present terms and (b) grants of options pursuant to the 1999 Incentive Plan or the Company's stock option plan for directors in effect as of the date hereof for attendance at meetings of the Board, on terms and in amounts consistent with past practice; (C) split, combine or reclassify any shares of its capital stock or declare, pay or set aside any securities convertible intodividend or other distribution (whether in cash, stock or property or any rights, warrants or options to acquire, any such combination thereof) in respect of its capital stock, or any Company Voting Debt (other than dividends or distributions to the issuance Company or a Subsidiary of Shares upon the exercise of Company Options outstanding on the date of this Agreement; (C) amend the Company’s certificate , or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any shares of incorporation its capital stock or bylawsother securities; (D) acquire or agree to acquire (I) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (II) any assets that would be material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole, except purchases of supplies, equipment and inventory than in the ordinary course of business consistent with past practice; , (Ea) sellcreate, leaseincur or assume any debt, mortgageexcept refinancings of existing obligations on terms that are no less favorable to the Company or its Subsidiaries than the existing terms; (b) assume, pledgeguarantee, xxxxx x Xxxx on endorse or otherwise encumber become liable or dispose responsible (whether directly, indirectly, contingently or otherwise) for the obligations of any of its properties Person; (c) make any capital expenditures or assets, except (I) in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in the aggregate; (F) (I) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, Person (other than to a Company Subsidiary and customary travel, relocation or business advances to employees); (d) acquire the advancement stock or assets of, or merge or consolidate with, any other Person; (e) voluntarily incur any material liability or obligation (absolute, accrued, contingent or otherwise); or (f) sell, transfer, mortgage, pledge or otherwise dispose of, or encumber, or agree to sell, transfer, mortgage, pledge or otherwise dispose of travel and relocation expenses or encumber, any assets or properties, real, personal or mixed, material to employees of the Company and its Subsidiaries taken as a whole other than to secure debt permitted under (a) of this clause (D); and (E) maintain in full force and effect the insurance described in Section 4.19 or comparable insurance. (b) Except as expressly contemplated by this Agreement, during the period from the date of this Agreement to the Closing Date, (i) ZGNA shall cause the Contributed Subsidiaries to conduct their businesses in the ordinary course and consistent with past practice, and ZGNA shall cause the Contributed Subsidiaries to use their reasonable commercial efforts to preserve intact their business organization, to keep available the services of their officers and employees and to maintain satisfactory relationships with all persons with whom they do business, (ii) ZGNA will use its reasonable commercial efforts to maintain in place the sales force of ZBI whom will be subject to the Agreement Regarding Employees and (iii) without limiting the generality of the foregoing, none of the Contributed Subsidiaries will: (A) amend or propose to amend its Organizational Documents in any material respect; (B) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any shares of, or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any shares of, the capital stock or other securities of the Contributed Subsidiaries including, but not limited to, any securities convertible into or exchangeable for shares of stock of any class of the Contributed Subsidiaries; (C) split, combine or reclassify any shares of its capital stock or declare, pay or set aside any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, other than dividends or distributions to the other Contributed Subsidiaries, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any shares of its capital stock or other securities; (D) other than in the ordinary course of business consistent with past practice; , (Ga) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parentcreate, make incur or incur assume any capital expendituredebt, except in refinancings of existing obligations on terms that are no less favorable to the ordinary course Contributed Subsidiaries than the existing terms; (b) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, indirectly, contingently or otherwise) for the obligations of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; any Person; (Hc) make any material election relating capital expenditures or make any loans, advances or capital contributions to, or investments in, any other Person (other than customary travel, relocation or business advances to Taxes employees); (d) acquire the stock or settle assets of, or compromise merge or consolidate with, any other Person; (e) voluntarily incur any material Tax liability; liability or obligation (Iabsolute, accrued, contingent or otherwise); or (f) except to the extent permitted by Section 6.2(a) of this Agreementsell, waive the benefits transfer, mortgage, pledge or otherwise dispose of, or encumber, or agree to modify in any mannersell, transfer, mortgage, pledge or otherwise dispose of or encumber, any confidentialityassets or properties, standstill real, personal or similar agreement mixed, material to which the Contributed Subsidiaries taken as a whole other than to secure debt permitted under (a) of this clause (D); and (E) maintain in full force and effect the insurance described in Section 5.19 or comparable insurance. (c) Absent the prior written consent of ZGNA, during the two year period following consummation of the Mergers, the Company is a party; agrees (Ji) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoing; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do it will not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (L) change any accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries liquidate Zuellig Botanical Extracts or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant of business, transfer more than an insubstantial portion of the assets of Zuellig Botanical Extracts to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may or an Affiliate of the Company; (ii) the Company shall take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (O) authorize any ofno action, or commit or agree and shall cause the Contributed Subsidiaries to take any ofno action, if such action would jeopardize the foregoing actionscharacterization of the Mergers as reorganizations within the meaning of Section 368(a) of the Code.

Ordinary Course. During the period from the date of this --------------- Agreement to the earlier of the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(a) of the Merger and the appointment or election of the Purchaser's designees to the Company Disclosure LetterBoard pursuant to Section 1.3 (such earlier time, the "Control Time"), the Company shall, and ------------ shall cause its Subsidiaries shall to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date of this Agreement, and, to the extent consistent therewith, use their all reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them to the Company or its Subsidiaries, in each case consistent with past practiceend that their goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted contemplated by this Agreement or set forth otherwise approved in Section 6.1(a) writing by Parent, during the period from the date of the Company Disclosure Letter, prior this Agreement to the Effective Control Time, the Company and its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh the interests permit any of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(ato: (i) in a reasonably timely fashion): (A) (I) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned Subsidiary of the Company to its parent, (IIB) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (IIIC) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, acquire any shares of capital stock of the Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (Bii) issue, deliver, grant, sell, pledge, dispose of pledge or otherwise encumber any shares of its capital stock (including shares issued and held in treasury), any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, voting securities or any Company Voting Debt (convertible securities, other than the issuance of Shares Common Stock upon the exercise of Company Options outstanding on the date of this AgreementAgreement in accordance with their present terms; (Ciii) amend the Company’s its certificate of incorporation incorporation, by-laws or bylawsother comparable charter or organizational documents; (Div) acquire or agree to acquire (IA) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof or (IIB) any assets that would be are material, individually or in the aggregate, to the Company and its Subsidiaries, Subsidiaries taken as a whole, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice; (Ev) sell, lease, mortgagelicense, pledge, xxxxx x Xxxx on mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except (I) sales of inventory in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in the aggregatepractice; (Fvi) (IA) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Personperson, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the CompanyCompany or any of its Subsidiaries, guarantee any debt securities of another Personperson, enter into any “"keep well” " or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital short-term borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred business consistent with past practice and pursuant to refund, refinance or replace indebtedness for borrowed money outstanding on existing agreements not to exceed in the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiariesaggregate $250,000, or (IIB) make any loans, advances or capital contributions to, or investments in, any other Personperson, other than to the advancement of travel and relocation expenses to employees Company or any direct or indirect wholly owned Subsidiary of the Company and its Subsidiaries in the ordinary course of business consistent with past practice; (G) except for capital expenditures travel advances and loans to employees in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available not to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than exceed $1,000,000 individually or 10,000 in the aggregate; (Hvii) make or agree to make any material election relating to Taxes new capital expenditure or settle or compromise any material Tax liabilityexpenditures which, individually, is in excess of $50,000 or, in the aggregate, are in excess of $250,000; (Iviii) except (A) grant to the extent permitted by Section 6.2(a) any officer of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoing; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining any increase in compensation, except as was required under employment agreements that replace or renew collective bargaining agreements that existed in effect as of December 31, 2004 so long 1996, (B) grant to any officer of the Company or any of its Subsidiaries any increase in severance or termination pay, except as the terms and conditions was required under employment, severance or termination agreements in effect as of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and December 31, 1996, (IIC) enter into collective bargaining agreements for Company any employment, severance or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining termination agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (L) change with any accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations officer of the Company or any of its Subsidiaries or (yD) amend any other claimbenefit plan in any respect; (ix) make any change in accounting methods, grievanceprinciples or practices materially affecting the Company's assets, chargeliabilities or business, litigation or proceeding except insofar as may have been required by a change in excess of $2,000,000 or generally accepted accounting principles; (IIx) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge discharge, settle or satisfy any material claims, liabilities or obligations; providedobligations (absolute, howeveraccrued, that the Company and its Subsidiaries may settle asserted or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any newunasserted, contingent or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Codeotherwise), (IV) grant any increases in employee compensation, other than the payment, discharge, settlement or satisfaction, in the ordinary course or pursuant to promotions, in each case of business consistent with past practice or in accordance with their terms; (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practicesxi) except in the ordinary course of business, modify, amend or terminate any material Contract or waive or release or assign any material rights or claims; (Vxii) grant make any stock options material tax election or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take settle or compromise any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreementmaterial income tax liability; or (Oxiii) authorize any of, or commit or agree to take any of, the foregoing actions.

Ordinary Course. During the period from the date of this Agreement to the earlier of the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(a) of the Merger and the appointment or election of Sub's designees to the Company Disclosure LetterBoard pursuant to Section 6.07 (such earlier time, the "Control Time"), the Company shall, and shall cause its Subsidiaries shall subsidiaries to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date of this Agreement, and, to the extent consistent therewith, use their all reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them to the Company or its Subsidiaries, in each case consistent with past practiceend that their goodwill and ongoing businesses shall be unimpaired at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted contemplated by this Agreement or set forth otherwise approved in Section 6.1(a) writing by Parent, during the period from the date of the Company Disclosure Letter, prior this Agreement to the Effective Control Time, the Company and its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned permit any of its subsidiaries to: (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(ai) in a reasonably timely fashion): (A) (I) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect wholly owned subsidiary of the Company to its parent, (IIB) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (IIIC) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, acquire any shares of capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (Bii) issue, deliver, grant, sell, pledge, dispose of pledge or otherwise encumber any shares of its capital stock stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, voting securities or any Company Voting Debt (convertible securities, other than the issuance of Shares Common Stock upon the exercise of Company Stock Options outstanding on the date of this AgreementAgreement in accordance with their present terms; (Ciii) amend the Company’s its certificate of incorporation incorporation, by- laws or bylawsother comparable charter or organizational documents; (Div) acquire or agree to acquire (IA) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof or (IIB) any assets that would be are material, individually or in the aggregate, to the Company and its Subsidiaries, subsidiaries taken as a whole, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice; (Ev) sell, lease, mortgagelicense, pledge, xxxxx x Xxxx on mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets, except (I) sales of inventory in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in the aggregatepractice; (Fvi) (IA) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Personperson, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the CompanyCompany or any of its subsidiaries, guarantee any debt securities of another Personperson, enter into any “"keep well” " or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital short-term borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred business consistent with past practice and pursuant to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiariesagreements, or (IIB) make any loans, advances or capital contributions to, or investments in, any other Personperson, other than to the Company or any direct or indirect wholly owned subsidiary of the Company; (vii) make or agree to make any new capital expenditure or expenditures which, individually, is in excess of $30,000 or, in the aggregate, are in excess of $250,000; (viii) (A) grant to any officer of the Company or any of its subsidiaries any increase in compensation, except as was required under employment agreements in effect as of December 31, 1996, (B) grant to any officer of the Company or any of its subsidiaries any increase in severance or termination pay, except as was required under employment, severance or termination agreements in effect as of December 31, 1996, (C) enter into any employment, severance or termination agreement with any officer of the Company or any of its subsidiaries or (D) amend any Benefit Plan in any respect; (ix) make any change in accounting methods, principles or practices materially affecting the Company's assets, liabilities or business, except insofar as may have been required by a change in generally accepted accounting principles; (x) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries payment, discharge, settlement or satisfaction, in the ordinary course of business consistent with past practice; (G) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually practice or in the aggregate; (H) make any material election relating to Taxes or settle or compromise any material Tax liability; (I) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoing; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable accordance with their terms; (L) change any accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (IIxi) except in the ordinary course of business business, modify, amend or as otherwise required pursuant to contracts existing on terminate any Material Contract or prior to the date of this Agreement waive or entered into in the ordinary course after the date of this Agreement, pay, discharge release or satisfy assign any material rights or claims, liabilities ; (xii) make any material tax election or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the income tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreementliability; or (Oxiii) authorize any of, or commit or agree to take any of, the foregoing actions.

Ordinary Course. During the period from From the date of this Agreement to hereof until the Effective Time (Closing, except as Buyer may, in its sole discretion, otherwise expressly provided agree in writing, or permitted by the terms of this Agreement or except as set forth in Section 6.1(a) of the Company Disclosure Letter)SCHEDULE 5.1, Seller shall cause the Company and its Subsidiaries shall carry on Sub to conduct their businesses business in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company or its Subsidiaries, in each case consistent with past practice. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(a) of neither the Company Disclosure Letter, prior to the Effective Time, the Company and its Subsidiaries shall not, without the prior written consent of Parent and Merger nor Sub shall: (which consent shall not be unreasonably withheld a) borrow any sums or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiariesenter into any financial guarantees or otherwise incur any indebtedness, including for the Company and its Subsidiariespayment of trade payables, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(a) in a reasonably timely fashion): (A) (I) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, (II) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (III) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (B) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock, or any Company Voting Debt (other than the issuance of Shares upon the exercise of Company Options outstanding on the date of this Agreement; (C) amend the Company’s certificate of incorporation or bylaws; (D) acquire or agree to acquire (I) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (II) any assets that would be material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice; (E) sell, lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or dispose of ; PROVIDED THAT neither the Company nor Sub shall have any of its properties or assets, except (I) in the ordinary course of business consistent obligation with past practice and (II) other transactions involving not in excess of $1,000,000 in the aggregate; (F) (I) incur any respect to indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for guarantees with respect thereto; or (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (IIb) make or authorize any loans, advances or capital contributions to, or investments in, compensation increase for any other Person, other than the advancement of travel and relocation expenses to employees employee of the Company or Sub whether such increase relates to base compensation, commissions, bonuses, or benefits, or otherwise unless such increase is consistent with the Company's prior practices with regard to such increases and its Subsidiaries Buyer consents to such increases, except that, as set forth in SCHEDULE 5.1(b), the Company shall, immediately prior to the Closing, pay (j) certain employees discretionary bonuses for fiscal 1997 in accordance with past practice the aggregate amount of which bonuses shall not exceed $300,000, (ii) amounts that shall become due and payable at the time of the Closing under those contracts set forth in SCHEDULE 3.13 hereto; and (iii) up to $250,000 for a one-time cash bonus for employees eligible for the Company's profit sharing plan, PROVIDED, that any payments made pursuant to this clause (iii) shall reduce the amount to be paid pursuant to Section 5.13; or (c) except for the sale by the Company of inventory or work-in-process and in the ordinary course of business consistent with past practice;, sell, assign, transfer, lease, mortgage, pledge or make or cause to become subject to any Claim, any of the assets of the Company or Sub; or (Gd) except for capital expenditures in compliance enter into any agreement with respect to the amounts Business pursuant to which the aggregate obligation of the Company and timing included Sub subsequent to the date hereof may exceed $50,000 individually or in the Company’s written capital expenditure plan previously made available to Parentaggregate, make and which is not terminable by the Company without penalty upon 90 days' notice or incur any capital expenditure, except less; or (e) manage inventories and other supplies and parts other than in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate;consistent with past practice; or (Hf) issue or sell any shares of its capital stock of any class, or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe to, any shares of its capital stock of any class, nor make any material election relating commitment to Taxes issue or sell any such shares or securities; or (g) except as may be disclosed on SCHEDULE 3.9, declare, pay or set aside for payment any dividend, distribution or return of capital in respect of its capital stock nor, directly or indirectly, redeem, purchase or otherwise acquire any shares of its capital stock; or (h) settle or compromise any material Tax liability;; or (Ii) except without limiting the generality of the foregoing, take any action or omit to the extent permitted by Section 6.2(a) take any action, which act or omission would result in a breach of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoing;representations or warranties set forth in clauses (a) through (j) of Section 3.23; or (Kj) otherwise enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do transaction not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (L) change any accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (O) authorize any of, or commit or agree to take any of, the foregoing actionsbusiness.

Ordinary Course. During the period The Company covenants and agrees as to itself and its Subsidiaries that, from the date of this Agreement to until the earlier of the Effective Time (and termination of this Agreement, except as otherwise expressly provided or specifically permitted by the terms any other provision of this Agreement (or as set forth in Section 6.1(a) 5.1 of the Company Disclosure Letter) or required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company or any of its Subsidiaries or except with Parent’s prior written approval (not to be unreasonably withheld, conditioned or delayed), the Company business of it and its Subsidiaries shall carry on their businesses be conducted in the usual, regular ordinary and ordinary usual course in substantially consistent with the same manner as conducted at the date of this Agreement, Company’s past practice and, to the extent consistent therewith, the Company and its Subsidiaries shall use their reasonable best efforts to (i) preserve intact their current business organizationsassets, (ii) keep available the services of their current officers and officers, key employees and consultants of the Company and each of its Subsidiaries, (iii) preserve their relationships the Company’s business organization intact and maintain its existing relations and goodwill with customers, suppliers, licensorsdistributors, licenseescreditors, distributors and others having business dealings lessors, and (iv) comply in all material respects with the Company or its Subsidiaries, in each case consistent with past practiceall applicable Laws. Without limiting the generality of the foregoing, and as an extension thereof, except as otherwise expressly provided or specifically permitted by any other provision of this Agreement (or as set forth in Section 6.1(a) 5.1 of the Company Disclosure Letter) or required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company, prior or the terms of any Contract binding upon the Company or any of its Subsidiaries, the compliance with which shall not cause the Company to be in material non-compliance with this Section 5.1, the Company shall not, and shall not permit any of its Subsidiaries to, from the date of this Agreement until the Effective Time, directly or indirectly, do, or agree to do, any of the Company and its Subsidiaries shall not, following without the prior written consent of Parent and Merger Sub (which consent shall not to be unreasonably withheld withheld, conditioned or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(a) in a reasonably timely fashiondelayed): (Aa) (I) amend or propose to amend the articles of incorporation or bylaws or other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, (II) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (III) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, any shares of capital stock comparable governing instruments of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesof its Significant Subsidiaries; (Bb) issue, deliver, grant, sell, pledge, dispose of, grant, transfer or encumber or authorize the issuance, sale, pledge, disposition, grant, transfer or encumbrance of any shares of, or otherwise encumber securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, or based on the value of, any shares of its capital stock of any class or any securities convertible intoEquity Interest, voting debt of the Company or any rightsof its Subsidiaries, warrants or options to acquire, any such capital stock, or any Company Voting Debt (other than the issuance of Shares shares upon the exercise of Company Options or the settlement of RSUs outstanding on as of the date hereof, in each case in accordance with the terms of this Agreementthe applicable Company Stock Plan and related award agreements; (Cc) amend other than pursuant to cash management or investment portfolio activities in the Company’s certificate ordinary course of incorporation or bylaws; (D) acquire or agree to business, acquire (I) including by merging or consolidating withmerger, consolidation, or by purchasing a substantial portion acquisition of the stock, stock or other ownership interests in, assets or substantial portion of assets of, Intellectual Property or by any other manner, business combination) any business or ownership interest in any corporation, partnership, associationother business organization or any division thereof or any assets or interest in any assets from any other Person for consideration valued in excess of $500,000.00 individually or $1,000,000.00 in the aggregate (with the valuation of any contingent consideration being determined in accordance with the valuation methodology used by the Company in connection with determining the need to make a notification under the HSR Act (without regard to whether payments are being made with respect to assets within or outside the United States)); (d) enter into any strategic licensing, joint venture, limited liability company collaboration, alliance, co-promotion or other entity or division thereof or (II) any assets similar agreement that would be material, involves payments by the Company to third parties in excess of $200,000.00 individually or $500,000.00 in the aggregateaggregate for all such contracts, provided, that no such agreement would (i) constitute a Company Material Contract, (ii) limit or restrict the Company or its Subsidiaries or the Parent or any of its Affiliates (including the Surviving Corporation) or any successor thereto, in each case, after the Effective Time, from engaging or competing in, or require any of them to work exclusively with the party to such agreement in, any material line of business or in any material geographic area, other than any limitation or restriction which the Company shall have the right to terminate upon a change of control at no cost and with no such continuing material restrictions or obligations to the Company or Parent or any of their respective Subsidiaries; or (iii) be reasonably expected to interfere with the parties’ ability to consummate the Mergers; (e) (i) purchase financial instruments that at the time of purchase qualify as Level III assets (as defined in FASB 157); (ii) change in a material manner the average duration of the Company’s investment portfolio or the average credit quality of such portfolio, except for changes that would reduce investment risk in such portfolio; (iii) materially change investment guidelines with respect to the Company’s investment portfolio except for changes that would reduce investment risk of the Company’s investment portfolio; (iv) hypothecate, repo, encumber or otherwise pledge assets in the Company’s investment portfolio; or (v) invest new surplus cash from operations in securities other than short-term liquid securities permitted by Parent’s investment guidelines (which shall be implemented by the Company with respect to such new surplus cash as soon as practicable after the date hereof); (f) enter into interest rate swaps, foreign exchange or commodity agreements and other similar hedging arrangements other than for purposes of offsetting a bona fide exposure (including counterparty risk); (g) merge or consolidate the Company or any of its Subsidiaries with any Person or adopt a plan of complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries, taken as a wholeother than any such transaction between or among direct or indirect wholly-owned Subsidiaries of the Company that would not result in material adverse tax consequences or material loss of tax benefits or loss of any material asset (including Intellectual Property); (h) sell, pledge, dispose of, transfer, lease, license, guarantee or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance of, any material property or assets (including Intellectual Property) of the Company or any of its Subsidiaries to any third party, except purchases (i) pursuant to existing Contracts or commitments, (ii) for the sale of supplies, equipment goods and inventory services in the ordinary course of business consistent with past practice, (iii) transactions involving property or assets of the Company or any of its Subsidiaries having a value no greater than $500,000.00 in the aggregate for all such transfers (with the valuation of any contingent consideration being determined in accordance with the valuation methodology used by the Company in connection with determining the need to make a notification under the HSR Act (without regard to whether payments are being made with respect to assets within or outside the United States)), (iv) in connection with any waiver, release, assignment, settlement, compromise of litigation otherwise permitted under this Section 5.1, or (v) in connection with cash management or investment portfolio activities in the ordinary course of business; (Ei) sellsplit, leasecombine, mortgagereclassify, pledge, xxxxx x Xxxx on subdivide or otherwise encumber amend the terms of its outstanding shares of capital stock or dispose any other securities of the Company or enter into any agreement with respect to voting of any of its properties capital stock or assetsany securities convertible into or exchangeable for such shares; (j) declare, set aside, make or pay any dividend or other distribution, whether payable in cash, stock, property or otherwise, in respect of the capital stock of the Company or any of its Subsidiaries, except between or among direct or indirect wholly-owned Subsidiaries of the Company; (Ik) purchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase, redeem or otherwise acquire any shares of its capital stock, any securities convertible or exchangeable or exercisable for any shares of capital stock or any other securities, except for purchases, redemptions or other acquisitions of capital stock or other securities (i) required by the terms of the Company Stock Plans, (ii) in order to pay Taxes or satisfy withholding obligations in respect of such Taxes in connection with the exercise of Company Stock Options or vesting of RSUs or the lapse of restrictions in respect of any other Equity Interests in the Company, in each case pursuant to the terms of the Company Stock Plans, or (iii) required by the terms of any plans, arrangements or agreements existing on the date hereof and disclosed in Section 3.11(a) of the Company Disclosure Letter between the Company or any of its Subsidiaries and any director or employee of the Company or any of its Subsidiaries; (l) incur any indebtedness for borrowed money or issue any debt securities or warrants or other rights to acquire debt securities of the Company or any of its Subsidiaries or assume, guarantee or endorse, as an accommodation or otherwise, the obligations of any other Person for borrowed money, in each case other than for borrowing under the Company’s existing working capital facilities and existing letter of credit facilities in the ordinary course; (m) make any loans or capital contributions to, or investments in, any Person, except for (i) loans and capital contributions to, or investments in, Subsidiaries organized under the laws of one of the United States, (ii) with respect to Subsidiaries organized under the laws of a jurisdiction other than one of the United States (a “Foreign Subsidiary”), (a) loans or capital contributions to, or investments in, Foreign Subsidiaries which are made in the ordinary course of business for the normal business operations of each such Foreign Subsidiary, consistent with past practice, and (b) additional loans or capital contributions to, or investments in, Foreign Subsidiaries in an amount not to exceed $250,000.00 in the aggregate for all Foreign Subsidiaries (but excluding from the limitation in this clause (b) such loans or capital contributions to, or investments in, one Foreign Subsidiary made by another Foreign Subsidiary), (iii) cash management or investment portfolio activities in the ordinary course of business and consistently with the Company’s obligations under Section 5.1(e), and (iv) in connection with a transaction permitted under Section 5.1(c) or (d); (n) make or agree to make any capital expenditures or commit to any capital projects in excess of $500,000.00 in the aggregate for all such capital expenditures and projects, other than the capital expenditures and capital projects described in Section 5.1(n) of the Company Disclosure Letter (it being understood that any excess over such amount attributable solely to foreign exchange fluctuation shall not be deemed to violate this clause); (o) terminate, cancel, renew, or request or agree to any material amendment or material modification to, material change in, or material waiver under, any Company Material Contract, or enter into or materially amend any Contract that, if existing on the date hereof, would be a Company Material Contract (in each case, excluding the Company Material Contracts identified in Section 3.10(a)(ii) (except for any amendment that would expand the limitations or restrictions referenced therein)); (p) enter into an employment agreement or relationship with any Person who earns an annual rate of base salary of more than or equal to $150,000.00 (other than with respect to employees hired pursuant to offers of employment outstanding on the date hereof); (q) enter into, modify, amend or terminate any Contract or waive, release or assign any rights or claims thereunder, which if so entered into, modified, amended, terminated, waived, released or assigned would be reasonably likely to (i) impair the ability of the Company to perform its obligations under this Agreement in any material respect or (ii) prevent or materially delay or impair the consummation of the Mergers and the other transactions contemplated by this Agreement; (r) except as required pursuant to any Company Benefit Plans, Foreign Benefit Plans, Collective Bargaining Agreements, the terms of this Agreement or any applicable Law: (i) grant or provide, or adopt a plan or enter into any agreement or agreements intended to grant or provide, any retention, change in control, severance or termination payments or benefits to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, (ii) increase the compensation, bonus or pension, welfare, severance or other benefits of, pay any bonus to, or make any new equity awards to any current or former director, officer, employee or consultant of the Company or any of its Subsidiaries, except for increases in base salary, in the ordinary course of business consistent with past practice for promoted employees who are not officers and whose new position fills a vacancy, that do not exceed three percent (II3%), (iii) establish, adopt, amend or terminate any Company Benefit Plan or amend the terms of any outstanding equity-based awards, (iv) take any action to accelerate the vesting or payment, or fund or in any other transactions involving way secure the payment, of compensation or benefits under any Company Benefit Plan, (v) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or to change the manner in which contributions to such plans are made or the basis on which such contributions are determined, or (vi) issue or forgive any loans to directors, officers, employees, contractors or any of their respective Affiliates except for any such issuance that would not in excess of $1,000,000 in violate the aggregateXxxxxxxx-Xxxxx Act and is consistent with past practice and policy; (Fs) (I) incur pre-pay any long-term indebtedness for borrowed money or guarantee change the terms or extend the maturity thereof (including providing cash cover under any letter of credit otherwise than as required to do so under such indebtedness facility), other than borrowings under its existing working capital facilities; (t) make any material change in its method of another Personaccounting or its accounting practices, issue policies or sell principles, unless required by Law, a Governmental Entity or GAAP, and neither the Company nor any debt securities of its Subsidiaries shall (i) change its fiscal year, (ii) make, change or warrants revoke any material United States Tax election, or other rights (iii) settle or compromise any Tax claim where the amount of cash to acquire be paid to the relevant taxing authority upon such settlement or compromise of such claim exceeds $50,000.00 above any debt securities amount reserved for such claim in the latest Company Financial Statements; (u) waive, release, assign, settle or compromise any claim the resolution of which (i) would involve the Company, guarantee any debt securities payment by the Company of another Person, enter into any “keep well” an amount in excess of $1,000,000.00 in the aggregate or other agreement to maintain any financial statement condition (ii) would involve the imposition of another person injunctive relief against the Company that would materially limit or restrict the business of Parent and its Subsidiaries (including the Surviving Corporation) following the Effective Time; or (v) authorize or enter into any arrangement having the economic effect of an agreement to do any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries in the ordinary course of business consistent with past practice; (G) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; (H) make any material election relating to Taxes or settle or compromise any material Tax liability; (I) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoing; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (L) change any accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (O) authorize any of, or commit or agree to take any of, the foregoing actions.

Ordinary Course. During the period from the date of this Agreement to the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or Except as set forth in Section 6.1(a) of the Company Disclosure Letter)Schedule, Company and the Company and its Subsidiaries shall carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date of this Agreement, and, to the extent consistent therewithwith such businesses, use their all reasonable best efforts consistent with past practice and policies to preserve intact their current present business organizations, keep available the services of their current officers present officers, consultants, and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with them. Company shall promptly notify Upgrade of any event or occurrence or emergency not in the ordinary course of business, of Company or the Company or its Subsidiaries, in each case consistent with past practiceand material and adverse to the Business Condition of Company. Without limiting the generality of the foregoing, and except Except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(a) the Company Disclosure Schedule, neither Company nor any of the Company Disclosure LetterSubsidiaries shall: (a) accelerate, prior to amend or change the Effective Timeperiod of exercisability or vesting of options, restricted stock, stock bonus or other awards granted under the Company Incentive and its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub Stock Option Plans (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests any discretionary acceleration of the Company and its Subsidiaries exercise periods by Company's Board of Directors permitted under such plans) or authorize cash payments in the matter in determining whether to grant a consent)exchange for any options, and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(a) in a reasonably timely fashion): (A) (I) restricted stock, stock bonus or other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, awards granted under any of its capital stock, (II) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (III) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiesplans; (Bb) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible into, or any rights, warrants or options to acquire, any such capital stock, or any Company Voting Debt (other than the issuance of Shares upon the exercise of Company Options outstanding on the date of this Agreement; (C) amend the Company’s certificate of incorporation or bylaws; (D) acquire or agree to acquire (I) by merging or consolidating with, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (II) any assets that would be material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practicepractices, grant any severance or termination pay to any officer or director or to any employee of Company or any of the Company Subsidiaries; (Ec) sell, lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or dispose of any of its properties or assets, except (I) in the ordinary course of business consistent with past practice practices and (II) other transactions involving not in excess than transfers between or among Company and any of $1,000,000 in its wholly owned Company Subsidiaries, transfer to any person or entity any rights to the aggregateCompany Intellectual Property Rights; (Fd) (I) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into or amend any “keep well” agreements pursuant to which any other party is granted exclusive marketing or other agreement manufacturing rights of any type or scope with respect to maintain any financial statement condition hardware or software products of another person Company or enter into any arrangement having the economic effect of any of the foregoing, Company Subsidiaries; (e) except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries in the ordinary course of business consistent with past practicepractices, commence a lawsuit other than: (i) for the routine collection of bills; (ii) for software piracy; (iii) in such cases where Company in good faith determines that failure to commence suit would result in a material impairment of a valuable aspect of Company's business, provided Company consults with Upgrade prior to filing such suit; or (iv) for a breach of this Agreement; (G) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; (H) make any material election relating to Taxes or settle or compromise any material Tax liability; (I) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoing; (Kf) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in one or more than one state; provided, however, that the Company and its Subsidiaries may leases which extend for a period of two (I2) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to years beyond the date of this Agreement but for and which no collective bargaining agreement exists as of the date of this Agreement, provided that the obligate Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (L) change any accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding pay aggregate gross rent in excess of Fifty Thousand Dollars ($2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations50,000); provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts;and (Ng) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or extend an offer of employment agreement to a candidate for an executive officer position without prior consultation with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (O) authorize any of, or commit or agree to take any of, the foregoing actionsUpgrade.

Ordinary Course. During the period from the date of this Agreement to the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(a) of the The Company Disclosure Letter)shall, the Company and shall cause its Subsidiaries shall to, carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date of this Agreement, and, to the extent consistent therewith, and use their reasonable its best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, contractors, distributors, licensors, licensees, distributors licensees and others having business dealings with them to the Company or its Subsidiaries, end that their goodwill and ongoing businesses shall not be impaired in each case consistent with past practiceany material respect at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted required by this Agreement or set forth in Section 6.1(a) of law, neither the Company Disclosure Letter, prior to the Effective Time, the Company and nor any of its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(a) in a reasonably timely fashion):shall: (Ai) (Ix) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stockstock (except dividends and distributions by a direct or indirect wholly-owned Subsidiary of the Company to its parent), (IIy) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (IIIz) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, acquire any shares of capital stock of the Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (Bii) except for the exercise by the Company of the Goldwyn Option pursuant to the Option Agreement dated as of April 13, 1993 by and among the Company, Xxxxxx Xxxxxxx, Jr. and The Xxxxxx Xxxxxxx Jr. Trust (the "Option Exercise"), authorize for issuance, issue, deliver, grantsell or agree or commit to issue, sellsell or deliver (whether through the issuance or granting of options, pledgewarrants, dispose of commitments, subscriptions, rights to purchase or otherwise), pledge or otherwise encumber any shares of its capital stock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, voting securities or convertible securities or any Company Voting Debt other securities or equity equivalents (including without limitation stock appreciation rights) other than the issuance of Shares issuances upon the exercise of Company Options employee and director stock options issued pursuant to employee and non-employee director stock option plans outstanding on the date hereof and listed in Section 3.1(c) of this Agreementthe Company Disclosure Schedule; (Ciii) except with respect to annual bonuses made in the ordinary course of business consistent with past practice and except as contemplated by this Agreement, adopt or amend in any material respect any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, pension, retirement, employment or other employee benefit agreement, trust, plan or other arrangement for the Company’s certificate benefit or welfare of incorporation any director, officer or bylawsemployee of the Company or any of its Subsidiaries or increase in any manner the compensation or fringe benefits of any director, officer or employee of the Company or any of its Subsidiaries or pay any benefit not required by any existing agreement or place any assets in any trust for the benefit of any director, officer or employee of the Company or any of its Subsidiaries (in each case, except with respect to employees in the ordinary course of business consistent with past practice); (Div) amend its certificate of incorporation, by-laws or equivalent organizational documents or alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of any Subsidiary of the Company; (v) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its material properties or assets; (vi) acquire or agree to acquire (Ix) by merging or consolidating with, or by purchasing a substantial portion of the stock, stock or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof or (IIy) any assets that would be are material, individually or in the aggregate, to the Company and its Subsidiaries, Subsidiaries taken as a whole, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice; (Evii) sellexcept for borrowings permitted under credit facilities filed as exhibits to the Company SEC Documents, lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or dispose of any of its properties or assets, except (I) in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in the aggregate; (F) (I) incur any indebtedness for borrowed money or guarantee any such indebtedness of another PersonDebt, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the CompanyCompany or any of its Subsidiaries, guarantee any debt securities of another Personperson, enter into any “"keep well” " or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than to the advancement of travel and relocation expenses to employees Company or any direct or indirect wholly-owned Subsidiary of the Company and its Subsidiaries in the ordinary course of business consistent with past practiceCompany; (G) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; (H) make any material election relating to Taxes or settle or compromise any material Tax liability; (I) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoing; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (Lviii) change any accounting principle used by it, except as unless required by applicable Laws the SEC or GAAP;the Financial Accounting Standards Board; and (Mix) (I) settle except for the Option Exercise, enter into any transaction or compromise (x) series of transactions with any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations Affiliate of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments a wholly-owned Subsidiary of the Company) or otherwise that would be required to be disclosed pursuant to Item 404 of Regulation S-K other than on terms and conditions substantially as favorable to the Company or such Subsidiary as would be obtainable by Law the Company or to maintain such Subsidiary at the tax qualified status time of such plans under transaction with a Person that is not an Affiliate of the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (O) authorize any of, or commit or agree to take any of, the foregoing actionsCompany.

Ordinary Course. During the period from the date of this Agreement to --------------- the Effective Time of the Merger (except as otherwise expressly provided or permitted specifically contemplated by the terms of this Agreement or as set forth in Section 6.1(a) of the Company Disclosure LetterAgreement), the Company TMW shall and shall cause each of its Subsidiaries shall significant subsidiaries to carry on their respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date of this Agreement, and, to the extent consistent therewith, use their all reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company or its Subsidiariesthem, in each case consistent with past practice, to the end that their goodwill and ongoing businesses shall be unimpaired to the fullest extent possible at the Effective Time of the Merger. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted contemplated by this Agreement or set forth in Section 6.1(a) of the Company Disclosure LetterAgreement, prior to the Effective Time, the Company and its Subsidiaries TMW shall not, without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned permit any of its subsidiaries to: (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(ai) in a reasonably timely fashion): (A) (I) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stock, other than dividends and distributions by any direct or indirect subsidiary of TMW to TMW or a subsidiary of TMW and immaterial dividends, distributions and other similar transactions involving existing subsidiaries, (IIB) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (IIIC) purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, acquire any shares of capital stock of the Company TMW or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities other than in connection with exercise of outstanding stock options and satisfaction of withholding obligations under outstanding stock options, purchase of shares of TMW Common Stock to fund current requirements under employee benefit plans and except in connection with the Exchangeable Shares of Xxxxxx Retail Group, Inc. ("MRG") and the Subscription Agreement between MRG and Golden Moores Finance Company; (Bii) issue, deliver, grant, sell, pledge, dispose of pledge or otherwise encumber any shares of its capital stock stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, voting securities or any Company Voting Debt convertible securities other than, in the case of TMW, (other than A) the issuance of Shares TMW Common Stock upon the exercise of Company Options stock options outstanding on the date of this Agreement in accordance with their current terms, (B) the issuance of a number of shares of TMW Common Stock, not to exceed 10% of the number of shares of TMW Common Stock currently outstanding, in connection with the acquisition of assets or equity securities of other entities or businesses, (C) pursuant to the existing bank credit agreements of TMW and its subsidiaries, or (D) in connection with the Exchangeable Shares of MRG or the Subscription Agreement; (Ciii) amend the Company’s certificate TMW's Restated Articles of incorporation or bylawsIncorporation; (Div) acquire or agree to acquire (I) by merging or consolidating withany business, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (II) any assets that would be materialinvolving the payment of consideration, individually or in the aggregateaggregate for all such acquisitions, to the Company and its Subsidiaries, taken as a whole, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practice; (E) sell, lease, mortgage, pledge, xxxxx x Xxxx on or otherwise encumber or dispose of any of its properties or assets, except (I) in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in 100 million without the aggregate; (F) (I) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities written consent of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries in the ordinary course of business consistent with past practicewhich consent shall not be unreasonably withheld; (Gv) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; (H) make any material election relating to Taxes or settle or compromise any material Tax liability; (I) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation of TMW or adopt resolutions providing for or authorizing any of the foregoingsuch a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (Lvi) change any material accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with regulations promulgated by the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this AgreementSEC; or (Ovii) authorize any of, or commit or agree to take any of, the foregoing actions.

Ordinary Course. During (i) In the period from the date of this Agreement to the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(a) case of the Company, the Company Disclosure Letter)and each of its Subsidiaries shall conduct their respective businesses only in, and neither the Company nor any of such Subsidiaries shall take any action except in, the ordinary course consistent with past practice. (ii) Without limiting the generality of the immediately preceding paragraph, (x) the Company and its Subsidiaries shall carry on their businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their all commercially reasonable best efforts to preserve intact in all material respects their current present business organizationsorganizations and reputation, to keep available the services of their current key officers and employees employees, to maintain their Assets and Properties in good working order and condition, ordinary wear and tear excepted, to maintain insurance on their tangible assets and businesses in such amounts and against such risks and losses as are currently in effect, to preserve their relationships with customers, suppliers, licensors, licensees, distributors customers and suppliers and others having significant business dealings with them, to make all required payments under the Company Benefit Plans and to comply in all material respects with all Laws and Orders of all Governmental or its Subsidiaries, in each case consistent with past practice. Without limiting the generality of the foregoingRegulatory Authorities applicable to them, and (y) the Company shall not, nor shall it permit any of its Subsidiaries to, except as otherwise expressly provided or permitted by for in this Agreement or set forth in Section 6.1(a) of the Company Disclosure Letter, prior to the Effective Time, the Company and its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(a) in a reasonably timely fashion):Agreement: (A) amend or propose to amend its certificate or articles of incorporation or bylaws (Ior other comparable corporate charter documents); (B) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, (w) declare, set aside or pay any dividends on, on or make any other distributions in respect of, of any of its capital stock, except for the declaration and payment of dividends by a wholly-owned Subsidiary solely to its parent corporation, (IIx) split, combine combine, reclassify or reclassify take similar action with respect to 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 (III) purchasestock, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender adopt a plan of complete or sale of shares of stock to the Company by partial liquidation or resolutions providing for or authorizing such liquidation or a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plandissolution, restructuring, recapitalization or other similar reorganization or (z) directly or indirectly redeem, repurchase or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (B) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible intoOption with respect thereto; (C) issue, deliver or sell, or any rightsauthorize or propose the issuance, warrants delivery or options to acquiresale of, any such shares of its capital stock, stock or any Company Voting Debt Option with respect thereto (other than (x) the issuance of Shares upon the exercise of Company VTX Common Stock pursuant to Options outstanding on the date of this Agreement; Agreement in accordance with their present terms, and (Cy) the issuance by a wholly-owned Subsidiary of its capital stock to its parent corporation), or modify or amend the Company’s certificate any right of incorporation any holder of outstanding shares of capital stock or bylawsOptions with respect thereto; (D) acquire or agree to except for the Acquisitions, acquire (I) by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, ) any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof or (II) otherwise acquire or agree to acquire any assets that would be other than in the ordinary course of its business consistent with past practice which are material, individually or in the aggregate, to the Company and its Subsidiaries, Subsidiaries taken as a whole; (E) other than in the ordinary course of its business consistent with past practice, sell, lease, grant any security interest in or otherwise dispose of or encumber any material amount of its Assets or Properties; (F) except purchases to the extent required by applicable Law, regulation or GAAP, (x) permit any material change in (A) any pricing, marketing, purchasing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy or (B) any method of suppliescalculating any bad debt, equipment and inventory contingency or other reserve for accounting, financial reporting or Tax purposes or (y) make any material Tax election or settle or compromise any material income Tax Liability with any Governmental or Regulatory Authority; (G) incur any Indebtedness for borrowed money or guarantee any such Indebtedness, other than in the ordinary course of business consistent with past practice; (EH) sellexcept as may be required by applicable Law, leaseenter into, mortgageadopt, pledgeamend in any material respect or terminate any Company Benefit Plan or other agreement, xxxxx x Xxxx on arrangement, plan or otherwise encumber policy between the Company or dispose of any one of its properties Subsidiaries and one or assetsmore of its directors, officers or employees, or, except (I) for normal increases in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 that, in the aggregate; (F) (I) incur any indebtedness for borrowed money , do not result in a material increase in benefits or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights compensation expense to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries taken as a whole, increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan or arrangement in effect as of the date hereof; (I) enter into any Contract or amend or modify any existing Contract, or engage in any new transaction outside the ordinary course of business consistent with past practice; (G) except for capital expenditures in compliance practice or not on an arm's length basis, with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; (H) make any material election relating to Taxes or settle or compromise any material Tax liability; (I) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoing; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (L) change any accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations Affiliate of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amountsSubsidiaries; (NJ) make any capital expenditures or commitments for additions to plant, property or equipment constituting capital assets in the aggregate amount exceeding $25,000; (IK) make any change in the lines of business in which it participates or is engaged; or (L) enter into any newContract, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement commitment or arrangement to do or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable engage in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (O) authorize any of, or commit or agree to take any of, the foregoing actions.

Ordinary Course. During (i) In the period from the date of this Agreement to the Effective Time (except as otherwise expressly provided or permitted by the terms of this Agreement or as set forth in Section 6.1(a) case of the Company, the Company Disclosure Letter)and each of its Subsidiaries shall conduct their respective businesses only in, and neither the Company nor any of such Subsidiaries shall take any action except in, the ordinary course consistent with past practice. (ii) Without limiting the generality of the immediately preceding paragraph, (x) the Company and its Subsidiaries shall carry on their businesses in the usual, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their all commercially reasonable best efforts to preserve intact in all material respects their current present business organizationsorganizations and reputation, to keep available the services of their current key officers and employees employees, to maintain their Assets and Properties in good working order and condition, ordinary wear and tear excepted, to maintain insurance on their tangible assets and businesses in such amounts and against such risks and losses as are currently in effect, to preserve their relationships with customers, suppliers, licensors, licensees, distributors customers and suppliers and others having significant business dealings with them, to make all required payments under the Company Benefit Plans and to comply in all material respects with all Laws and Orders of all Governmental or its Subsidiaries, in each case consistent with past practice. Without limiting the generality of the foregoingRegulatory Authorities applicable to them, and (y) the Company shall not, nor shall it permit any of its Subsidiaries to, except as otherwise expressly provided or permitted by for in this Agreement or set forth in Section 6.1(a) of the Company Disclosure Letter, prior to the Effective Time, the Company and its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(a) in a reasonably timely fashion):Agreement: (A) amend or propose to amend its certificate or articles of incorporation or bylaws (Ior other comparable corporate charter documents); (B) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, (w) declare, set aside or pay any dividends on, on or make any other distributions in respect of, of any of its capital stock, except for the declaration and payment of dividends by a wholly-owned Subsidiary solely to its parent corporation, (IIx) split, combine combine, reclassify or reclassify take similar action with respect to 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 (III) purchasestock, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of any Stock Plan or (y) the surrender adopt a plan of complete or sale of shares of stock to the Company by partial liquidation or resolutions providing for or authorizing such liquidation or a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plandissolution, restructuring, recapitalization or other similar reorganization or (z) directly or indirectly redeem, repurchase or otherwise acquire any shares of capital stock of the Company or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; (B) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital stock or any securities convertible intoOption with respect thereto; (C) issue, deliver or sell, or any rightsauthorize or propose the issuance, warrants delivery or options to acquiresale of, any such shares of its capital stock, stock or any Company Voting Debt Option with respect thereto (other than (x) the issuance of Shares upon the exercise of Company VTX Common Stock pursuant to Options outstanding on the date of this Agreement; Agreement in accordance with their present terms, and (Cy) the issuance by a wholly-owned Subsidiary of its capital stock to its parent corporation), or modify or amend the Company’s certificate any right of incorporation any holder of outstanding shares of capital stock or bylawsOptions with respect thereto; (D) acquire or agree to except for the Acquisitions, acquire (I) by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, ) any business or any corporation, partnership, association, joint venture, limited liability company association or other entity business organization or division thereof or (II) otherwise acquire or agree to acquire any assets that would be other than in the ordinary course of its business consistent with past practice which are material, individually or in the aggregate, to the Company and its Subsidiaries, Subsidiaries taken as a whole; (E) other than in the ordinary course of its business consistent with past practice, sell, lease, grant any security interest in or otherwise dispose of or encumber any material amount of its Assets or Properties; (F) except purchases to the extent required by applicable Law, regulation or GAAP, (x) permit any material change in (A) any pricing, marketing, purchasing, investment, accounting, financial reporting, inventory, credit, allowance or Tax practice or policy or (B) any method of suppliescalculating any bad debt, equipment and inventory contingency or other reserve for accounting, financial reporting or Tax purposes or (y) make any material Tax election or settle or compromise any material income Tax Liability with any Governmental or Regulatory Authority; (G) incur any Indebtedness for borrowed money or guarantee any such Indebtedness, other than in the ordinary course of business consistent with past practice;; 20 (EH) sellexcept as may be required by applicable Law, leaseenter into, mortgageadopt, pledgeamend in any material respect or terminate any Company Benefit Plan or other agreement, xxxxx x Xxxx on arrangement, plan or otherwise encumber policy between the Company or dispose of any one of its properties Subsidiaries and one or assetsmore of its directors, officers or employees, or, except (I) for normal increases in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 that, in the aggregate; (F) (I) incur any indebtedness for borrowed money , do not result in a material increase in benefits or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights compensation expense to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries taken as a whole, increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan or arrangement in effect as of the date hereof; (I) enter into any Contract or amend or modify any existing Contract, or engage in any new transaction outside the ordinary course of business consistent with past practice; (G) except for capital expenditures in compliance practice or not on an arm's length basis, with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; (H) make any material election relating to Taxes or settle or compromise any material Tax liability; (I) except to the extent permitted by Section 6.2(a) of this Agreement, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoing; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (L) change any accounting principle used by it, except as required by applicable Laws or GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations Affiliate of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amountsSubsidiaries; (NJ) make any capital expenditures or commitments for additions to plant, property or equipment constituting capital assets in the aggregate amount exceeding $25,000; (IK) make any change in the lines of business in which it participates or is engaged; or (L) enter into any newContract, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement commitment or arrangement to do or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable engage in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (O) authorize any of, or commit or agree to take any of, the foregoing actions.

Ordinary Course. During the period from the date of this Formation Agreement to the Effective Time Closing Date (except as otherwise expressly provided or permitted specifically contemplated by the terms of this Agreement or as set forth in Section 6.1(a) of the Company Disclosure LetterFormation Agreement), the Company Weatxxxxxxx xxxl cause each Transferring Weatxxxxxxx Xxxity to, and its Subsidiaries shall each Transferring Weatxxxxxxx Xxxity will, carry on their businesses its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted at the date of this Agreement, and, to the extent consistent therewith, use their all reasonable best efforts to preserve intact their its current business organizations, keep available the services of their its current officers and employees and preserve their its relationships with customers, suppliers, licensors, licensees, distributors and others having business dealings with the Company or its Subsidiariesit, in each case consistent with past practice, to the end that its goodwill and ongoing business shall be unimpaired to the fullest extent possible at the Closing Date. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted contemplated by this Agreement or set forth in Section 6.1(a) of the Company Disclosure LetterFormation Agreement, prior to the Effective Time, the Company and its Subsidiaries shall not, without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent)no Transferring Weatxxxxxxx Xxxity shall, and Parent and Merger Sub shall respond to Weatxxxxxxx xxxll not permit any request for consent pursuant to this Section 6.1(aTransferring Weatxxxxxxx Xxxity to: (i) in a reasonably timely fashion): (A) (I) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any dividends on, or make any other distributions in respect of, any of its capital stockequity securities or interests, other than dividends and distributions by any direct or indirect wholly owned subsidiary of WECC to WECC or a wholly owned subsidiary of WECC, (IIB) split, combine or reclassify any of its capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock stock, or (IIIC) purchase, redeem or otherwise acquire, except (x) the return of unvested acquire any equity securities or forfeited Shares to the Company pursuant to the terms interests of any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, any shares of capital stock of the Company Transferring Weatxxxxxxx Xxxity or any other securities thereof or any rights, warrants or options to acquire any such shares or other securitiessecurities or interests; (Bii) issue, deliver, grant, sell, pledge, dispose of pledge or otherwise encumber any shares of its capital stock or other equity interests, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such capital stockshares, equity interests or any Company Voting Debt (other than the issuance of Shares upon the exercise of Company Options outstanding on the date of this Agreementsecurities, voting securities or convertible securities; (Ciii) amend the Company’s its certificate or articles of incorporation or bylawssimilar charter documents, its bylaws or its limited partnership agreement; (Div) except for those contemplated transactions described on Schedule 4.1(a)(iv) attached hereto, acquire or agree to acquire (I) by merging or consolidating withany business, or by purchasing a substantial portion of the stock, or other ownership interests in, or substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company or other entity or division thereof or (II) any assets that would be material, involving the payment of consideration in excess of $1,000,000 individually or in the aggregateaggregate (with respect to all such transactions by all Transferring Weatxxxxxxx Xxxities) without the written consent of GE Capital, to the Company and its Subsidiaries, taken as a whole, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practicewhich consent shall not be unreasonably withheld; (Ev) incur any Indebtedness, whether or not evidenced by a note, bond, debenture or similar instrument, except for such borrowings that would be repaid in full at Closing; (vi) sell, lease, mortgage, pledge, xxxxx pledge or granx x Xxxx on xx or otherwise encumber or dispose of any of its properties or assets, except (IA) in the ordinary course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in the aggregate; (F) (I) incur any indebtedness for borrowed money sales or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (II) make any loans, advances or capital contributions to, or investments in, any other Person, other than the advancement of travel and relocation expenses to employees of the Company and its Subsidiaries leases in the ordinary course of business consistent with past practice, (B) as may be required under Weatxxxxxxx'x xxxdit and debt facilities, (C) with respect to purchase money security interests, and (D) other immaterial transactions not in excess of $1,000,000 in the aggregate (with respect to all such transactions by all Transferring Weatxxxxxxx Xxxities); (G) except for capital expenditures in compliance with the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or in the aggregate; (Hvii) make any material change in any election relating to Taxes or settle or compromise any material Tax liabilityaudit or controversy relating to any Weatxxxxxxx Xxxity or the Weatxxxxxxx Xxxpression Business; (Iviii) except to the extent permitted by Section 6.2(a) of this Agreementfor those transactions contemplated hereby, waive the benefits of, or agree to modify in any manner, any confidentiality, standstill or similar agreement to which the Company is a party; (J) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan of complete or partial liquidation or adopt resolutions providing for or authorizing any of the foregoingsuch a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization; (K) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of any such replacement or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable terms; (Lix) change any material accounting principle used by it, except as required by applicable Laws or regulations promulgated by GAAP; (M) (I) settle or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable in any material respect than those applicable to the person that previously held the vacant position, (y) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or to maintain the tax qualified status of such plans under the Code), (IV) grant any increases in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (Ox) authorize any of, or commit or agree to take any of, the foregoing actions.

Ordinary Course. During Except as expressly provided or permitted herein, or as consented to in writing by Buyer, during the period from commencing on the date of this Agreement to and ending on the Effective Time (except Closing Date or such earlier date as otherwise expressly provided or permitted by the terms of this Agreement or as set forth may be terminated in Section 6.1(a) of accordance with its terms (the “Pre-Closing Period”), Seller will cause the Company Disclosure Letter), the Company to act and its Subsidiaries shall carry on their the Company’s businesses in the usualOrdinary Course of Business, regular and ordinary course in substantially the same manner as conducted at the date of this Agreement, and, to the extent consistent therewith, use their reasonable best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees maintain and preserve their the Company’s business organization, assets and properties, preserve the Company’s business relationships with customers, strategic partners, suppliers, licensors, licensees, distributors and others having business dealings with it and keep available the Company or its Subsidiariesservices of the present officers, in each case consistent with past practiceemployees and consultants of the Company. Without limiting the generality of the foregoing, and except as otherwise expressly provided or permitted by this Agreement or set forth in Section 6.1(a) of herein, during the Company Disclosure Letter, prior to the Effective TimePre-Closing Period, the Company and its Subsidiaries shall not, directly or indirectly, do any of the following without the prior written consent of Parent and Merger Sub (which consent shall not be unreasonably withheld or conditioned (understanding that Parent may weigh the interests of Parent and its Subsidiaries, including the Company and its Subsidiaries, after the Merger against the interests of the Company and its Subsidiaries in the matter in determining whether to grant a consent), and Parent and Merger Sub shall respond to any request for consent pursuant to this Section 6.1(a) in a reasonably timely fashion):Buyer: (Ai) (I) other than regularly scheduled quarterly dividends not to exceed $0.093333 per share of Company Common Stock per fiscal quarter, declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stockstock or other equity securities, (II) except that the Company may make distributions to the Seller in sufficient amount to pay federal, state and local income taxes, at the highest marginal tax rates applicable to Seller on the net distributive share of the Company’s income, losses, deductions and credits that have been separately stated and passed through to the Seller under Section 1366 of the Code, provided that the Buyer shall be notified in advance of such distributions; split, combine or reclassify any of its capital stock or other equity securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (III) any of its other securities; or purchase, redeem or otherwise acquire, except (x) the return of unvested or forfeited Shares to the Company pursuant to the terms of acquire any Stock Plan or (y) the surrender or sale of shares of stock to the Company by a holder of Company Options to pay tax withholding obligations pursuant to the terms of any Stock Plan, any shares of capital stock of the Company or any of its other securities thereof or any rights, warrants or options to acquire any such shares capital stock or other securities; (Bii) issue, deliver, sell, grant, sell, pledge, pledge or otherwise dispose of or otherwise encumber any of its capital stock stock, any other voting securities or any securities convertible intointo or exchangeable for, or any rights, warrants or options to acquire, any such capital stock, voting securities or any Company Voting Debt convertible or exchangeable securities (other than the issuance of Shares shares of capital stock upon the exercise of Company Options options or warrants outstanding on the date of this Agreement); (Ciii) amend any of the Company’s certificate Organizational Documents or other comparable charter or organizational documents or enter into any new line of incorporation business or bylawsdiscontinue any existing line of business; (Div) acquire or agree to acquire (I) by merging or consolidating with, or by purchasing all or a substantial portion of the stock, assets or other ownership interests in, or substantial portion of assets any stock of, or by any other manner, any business or any corporation, partnership, association, joint venture, limited liability company company, association or other entity business organization or division thereof thereof, or (II) any assets that would be are material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole, except purchases of supplies, equipment and inventory in the ordinary course of business consistent with past practiceCompany; (Ev) sell, lease, mortgagelicense, pledge, xxxxx x Xxxx on or otherwise encumber or dispose of or encumber any of its material properties or assets, except (I) material assets of the Company other than in the ordinary course Ordinary Course of business consistent with past practice and (II) other transactions involving not in excess of $1,000,000 in the aggregateBusiness; (Fvi) knowingly or irrevocably waive any material right of the Company under any Material Contract; (vii) (IA) incur any indebtedness for borrowed money Indebtedness other than draws under such Company’s existing line of credit in the Ordinary Course of Business, make any payments on any existing Indebtedness other than regular payments made pursuant to the terms of such existing Indebtedness, or guarantee pay any such indebtedness guaranty fees or other fees to any guarantor of another Personany Indebtedness of the Company, issue (B) issue, sell or sell amend any debt securities or warrants or other rights to acquire any debt securities of the Company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another person Person or enter into any arrangement having the economic effect of any of the foregoing, except for (x) working capital borrowings and letters of credit under revolving credit facilities incurred in the ordinary course of business, (y) indebtedness incurred to refund, refinance or replace indebtedness for borrowed money outstanding on the date of this Agreement and (z) indebtedness existing solely between the Company and its wholly owned Subsidiaries or between such Subsidiaries, or (IIC) make any loans, advances or capital contributions to, or investments investment in, any other Person; provided, however, that the Company may, in the Ordinary Course of Business, invest in debt securities maturing not more than ninety (90) days after the date of investment, or (D) other than in the advancement Ordinary Course of travel and relocation expenses Business, enter into any hedging agreement or other financial agreement or arrangement designed to employees of protect the Company and its Subsidiaries against fluctuations in the ordinary course of business consistent with past practicecommodities prices or exchange rates; (Gviii) except for make any capital expenditures or other expenditures with respect to property, plant or equipment in compliance with excess of the amounts and timing included in the Company’s written capital expenditure plan previously made available to Parent, make or incur any capital expenditure, except in the ordinary course of business or involving the expenditure of no more than $1,000,000 individually or Threshold Amount in the aggregate; (Hix) make any material election relating to Taxes changes in accounting methods, principles or settle or compromise any material Tax liabilitypractices, except insofar as may have been required by a change in GAAP; (Ix) except as required to comply with applicable Law or agreements, plans or arrangements existing on the extent permitted by Section 6.2(adate hereof, (A) adopt, enter into, terminate or materially amend any employment, severance or similar agreement or material benefit plan for the benefit or welfare of this Agreementany current or former director, waive officer or employee, including a Company Benefit Plan or any collective bargaining agreement, (B) increase in any material respect the compensation or fringe benefits of, or agree pay any bonus to, any director, officer or employee, (C) accelerate the payment, right to modify payment or vesting of any material compensation or benefits, including any outstanding options or restricted equity awards, other than as contemplated by this Agreement, (D) grant any options to purchase capital stock, equity appreciation rights, equity based or equity related awards, performance units or restricted equity, or (E) take any action other than in the Ordinary Course of Business to fund or in any mannerother way secure the payment of compensation or benefits under a Company Benefit Plan; (xi) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any amendment to a Tax Return, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; (xii) enter into or amend any contract or agreement other than in the Ordinary Course of Business or terminate any Material Contract or amend any of its material terms (other than amendments designed to remedy defaults thereunder); (xiii) commence, pay, discharge, settle or satisfy any lawsuits, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the Ordinary Course of Business of liabilities reflected or reserved against in the Unaudited Balance Sheet and financial statements or incurred in the Ordinary Course of Business, or waive any material benefits of any confidentiality, standstill or similar agreement agreements to which the Company is a party; (Jxiv) restructure, recapitalize, reorganize or completely or partially liquidate or adopt a plan permit any material increase in the number of complete or partial liquidation or adopt resolutions providing for or authorizing any of employees employed by the foregoingCompany on the date hereof; (Kxv) terminate or fail to renew any Governmental Authorization that is required for continued operations; (xvi) enter into any new collective bargaining agreement, including any collective bargaining agreement involving unions in more than one state; provided, however, that the Company and its Subsidiaries may (I) enter into collective bargaining agreements that replace or renew collective bargaining agreements that existed as of December 31, 2004 so long as the terms and conditions of union contract with any such replacement labor organization or renewal agreement do not materially deviate from the terms and conditions of such existing agreement and (II) enter into collective bargaining agreements for Company or Subsidiary business locations that have had union elections prior to the date of this Agreement but for which no collective bargaining agreement exists as of the date of this Agreement, provided that the Company and its Subsidiaries negotiate such agreements in good faith and the final agreements contain commercially reasonable termsunion; (Lxvii) change accelerate or defer any accounting principle used obligation or payment by itor to the Company, except as required by applicable Laws or GAAPnot pay any accounts payable or other obligation of such Company when due and other than in the Ordinary Course of Business; (Mxviii) (I) settle decrease or compromise (x) any litigation, administrative proceeding, claim or charge before or with the National Labor Relations Board or any other litigation, administrative proceeding, claim or charge that reasonably could be expected to have a significant impact on the labor relations of the Company or any of its Subsidiaries or (y) any other claim, grievance, charge, litigation or proceeding in excess of $2,000,000 or (II) except in the ordinary course of business or as otherwise required pursuant to contracts existing on or prior to the date of this Agreement or entered into in the ordinary course after the date of this Agreement, pay, discharge or satisfy any material claims, liabilities or obligations; provided, however, that the Company and its Subsidiaries may settle or compromise automobile and accident liability litigation in an individual amount not to exceed the Company’s self-insurance retention amounts; (N) (I) enter into any new, or amend any existing, retention or severance agreement or arrangement, deferred compensation arrangement or employment agreement with any officer, director or employee whose annual base salary exceeds $150,000, (II) enter into any employment agreement, retention or severance agreement or arrangement or deferred compensation arrangement with any director, officer or employee, except for (x) agreements or arrangements with individuals hired or promoted to fill vacant positions in terms not more favorable defer in any material respect than those applicable the level of training provided to the person that previously held employees of such Company or the vacant position, level of costs expended in connection therewith; and (yxix) severance agreements for new hires on terms providing net severance payments not greater than six months in base salary and target bonus and (z) other severance commitments that are not in excess of $50,000 for any individual; provided, however that the severance payments and commitments in subsections (y) and (z) above shall not exceed $2,000,000 in the aggregate, (III) adopt any new incentive, retirement or welfare benefit arrangements, plans or programs for the benefit of current, former or retired employees or amend any existing Company Compensation and Benefit Plan (other than amendments required by Law or fail to maintain the tax qualified status of such plans under the Code), (IV) grant any increases insurance at levels at least comparable to current levels or otherwise in employee compensation, other than in the ordinary course or pursuant to promotions, in each case consistent a manner inconsistent with past practice (which shall include normal individual periodic performance reviews and related compensation and benefit increases and bonus payments consistent with past practices) or (V) grant any stock options or stock awards other than as permitted by this Agreement; provided, however, that notwithstanding the foregoing, the Company may take any action reasonably necessary to fulfill its obligations as contemplated by Section 4.11 of this Agreement; or (O) authorize any of, or commit or agree to take any of, the foregoing actionspractice.