Common use of Absence of Certain Changes or Events Clause in Contracts

Absence of Certain Changes or Events. (a) Since the date of the Company Balance Sheet, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof, the Company has conducted its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date December 31, 1998, except as set forth in Section 3.08 of the Company Balance Sheet, except Disclosure Schedule or as contemplated by this Agreement, Agreement or disclosed in any Exchange Act SEC Report filed after the date of the Company Balance Sheet since December 31, 1998 and prior to the date hereofof this Agreement, the Company has and the Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices and practice and, since December 31, 1998, there has not been any (i) any Material Adverse Effect; Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iii) change in the capital stock of with respect to the Company or any Company Subsidiary; (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, (v) except any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as set forth in Section 3.07(va whole, (vii) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; , (viviii) except other than as set forth in any contracts (as in effect on the date hereof) referred to in Section 3.07(vi) of the Disclosure Schedule3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, awards or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practices; practice, (viiix) amendment of any term of entering into, renewal, modification or extension of, any outstanding security material contract, arrangement or agreement with any affiliate of the Company Company, or (x) any Company Subsidiary; (viii) damageentering into, destruction renewal, modification or extension of, any contract, arrangement or agreement with any other casualty loss party having, individually or in the aggregate, a Material Adverse Effect with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since Except for liabilities incurred in connection with this Agreement or the date of the Company Balance Sheettransactions contemplated hereby, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof, the Company has conducted its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v3.1(g) of the Company Disclosure Schedule, or as disclosed in the Company SEC Documents filed and publicly available prior to the date hereof (as amended to the date hereof, "Company Filed SEC Documents"), since December 31, 2001, the Company and its subsidiaries have conducted their respective businesses only in the ordinary course, and there has not been: (i) any material adverse change in the Company, including, but not limited to, any material adverse change arising from or relating to fraudulent or unauthorized activity, (ii) any issuance of Company Stock Options or restricted shares of Company Common Stock (in any event identifying in Section 3.1(g) of the Company Disclosure Schedule the issue date, exercise price and vesting schedule, as applicable, for issuances since December 31, 2001), (iii) any declaration, setting aside or payment of any dividend or other distribution (whether in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharingcash, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (viiproperty) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this AgreementCompany's capital stock, other than regular quarterly cash dividends not to exceed $0.10 on the amendment to Company Common Stock in accordance with its terms and regular cash dividends on the Certificate REIT Preferred Stock of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein;Preferred Capital Corp. in accordance with its terms, (xiiiiv) creation of any new class of capital stock of the Company; (xiv) split, combination or reclassification of any of the Company's capital stock into or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares that would have a preference over or on parity of the Company's capital stock, except for issuances of Company Common Stock (and LTWs, if any) upon the exercise of Company Stock Options awarded prior to the date hereof in accordance with the Series B Preferred Stock;their present terms, (xvv) sale of prior to the date hereof (or an agreement to sellA) Core Business Assets of any granting by the Company or any Company Subsidiaryof its subsidiaries to any current or former director, executive officer or other Employee of any mergerincrease in compensation, consolidation bonus or combination other benefits, except for increases to then current Employees who are not directors or executive officers that were made in the ordinary course of business, (B) any granting by the Company or any Company Subsidiary with another entity; (xvi) of its subsidiaries to any such current or former director, executive officer or Employee of any increase in the authorized number of shares of Common Stock severance or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable fortermination pay, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xxC) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted entry by or against the Company or any of its subsidiaries into, or any amendment of, any employment, deferred compensation, consulting, severance, termination or indemnification agreement with any such current or former director, executive officer or any Employee, (vi) except insofar as may have been required by a change in GAAP or regulatory accounting principles, any change in accounting methods, principles or practices by the Company Subsidiary seeking affecting its assets, liabilities or business, including, without limitation, any reserving, renewal or residual method, or estimate of practice or policy, (vii) any Tax election or change in any Tax election, amendment to adjudicate any Tax Return (as defined in Section 3.1(j)), closing agreement with respect to Taxes, or settlement or compromise of any income Tax liability by the Company or its subsidiaries, except as would not be required to be disclosed in the Company SEC Documents, (viii) any material change in investment policies, or (ix) any agreement or commitment (contingent or otherwise) to do any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganizationthe foregoing.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetMarch 31, 1997, except as contemplated by this Agreement, Agreement or as disclosed in any Exchange Act Report the IHK SEC Reports filed after the date of the Company Balance Sheet and prior to the date hereofof this Agreement, IHK and the Company has IHK Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices and practice and, since such date, there has not been any (ia) any IHK Material Adverse Effect; , (iib) any change by the Company IHK in its accounting methods, principles or policiespractices, except as may be required by US U.S. GAAP; , (iiic) change any damage, destruction or loss (whether or not covered by insurance) with respect to properties or assets of IHK or any IHK Subsidiary that, individually or in the capital stock aggregate, would result in an IHK Material Adverse Effect, (d) any declaration, setting aside or payment of the Company any dividend or distribution in respect of shares of IHK Common Stock or any Company Subsidiary; redemption, purchase or other acquisition of any of its securities other than the previously declared regular quarterly dividend of $0.03 per share of IHK Common Stock, (ive) any revaluation by IHK and the Company IHK Subsidiaries of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, (vf) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company entry by IHK or any optional redemptionIHK Subsidiary into any commitment or transaction material to IHK and the IHK Subsidiaries taken as a whole, purchase or other acquisition except in the ordinary course of business consistent with past practice, (g) any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, awards or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company IHK or any Company IHK Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.practice,

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetDecember 31, 2000, except as contemplated by this Agreement, Agreement or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior ancillary agreements to the date hereofwhich it is a party, the Company B has conducted its business only in the ordinary course and in a manner consistent with past practices and practice and, since such date, there has not been any (ia) any B Material Adverse Effect or any event or circumstance reasonably likely to result in a B Material Adverse Effect; , (iib) any material change by the Company B in its accounting (tax, financial or otherwise) methods, principles or policiespractices, except as may be required by US GAAP; (iiic) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company B of any material asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, (vd) except as set forth any entry by B into any commitment or transaction material to B or any amendment or modification to, or waiver or relinquishment of any rights under, any B Permit or B Material Contract, other than after the date hereof in Section 3.07(vthe regular, usual and ordinary course of business, (e) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company B Shares or any optional redemption, purchase or other acquisition of any of its securities; , (vif) except as set forth in Section 3.07(vi) any split, combination or reclassification of any of the Disclosure Schedulecapital stock of B or any issuance, or the authorization of any issuance, of any securities in respect of, in lieu of or in substitution for shares of capital stock of B or (g) any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit planplan relating to any employee of B, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company SubsidiaryB, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company as required by any Company Subsidiary; (xi) (A) transactions, commitments, contracts Law or agreements entered into by the Company existing agreement or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitplan. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since Except as disclosed in the Filed Company SEC Reports since December 31, 2004, to the date of the Company Balance Sheet, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof, the Company has Subsidiaries have conducted its business their respective businesses only in the ordinary course and in a manner consistent with past practices and practice and, since December 31, 2004, there has not been any (ia) Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) any change in the capital stock financial condition, results of operations, or business of the Company or any of the Company Subsidiary; Subsidiaries that would have a Material Adverse Effect on the Company; (ivb) any damage, destruction, or loss (whether or not covered by insurance) with respect to any assets of the Company or any of the Company Subsidiaries that would have a Material Adverse Effect on the Company; (c) any change by the Company or any of the Company Subsidiaries in their respective accounting methods, principles, or practices, except for compliance with applicable new requirements of the Financial Accounting Standards Board or GAAP; (d) any revaluation by the Company or any of the Company Subsidiaries of any asset of their respective material assets in any material respect; (including, without limitatione) except in the ordinary course of business or as set forth in the Company Disclosure Schedule at Section 2.08(e), any writing down entry by the Company or any of the value Company Subsidiaries into any commitment or transaction material to the Company or any of inventory or writing-off of notes or accounts receivablethe Company Subsidiaries; (f) except as set forth in the Company Disclosure Schedule at Section 2.08(f), any declaration, setting aside, or payment of any dividends or distributions in respect of shares of the Company Common Stock (other than regular, quarterly cash dividends paid thereon not in excess of $0.17 per share) or any redemption, purchase, or other acquisition of any of its securities or any of the securities of any of the Company Subsidiaries; or (g) except as set forth in the Company Disclosure Schedule at Section 2.08(g) other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) for employees other than officers of the Disclosure ScheduleCompany, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase purchase, or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company PermitSubsidiaries. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. From June 1, 2012 through the date of this Agreement: (a) Since the date of The Company and the Company Balance Sheet, except as contemplated by this Agreement, or disclosed Subsidiaries have conducted their respective businesses in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof, the Company has conducted its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than all material respects in the ordinary course of business consistent with past practices;business. (vb) except as set forth in Section 3.07(vThere has not occurred, arisen or come into existence any fact, change, event, development or circumstance, or any worsening thereof, which has had or would reasonably be expected to have a Company Material Adverse Effect. (c) of the Disclosure ScheduleThere has not been any declaration, declarationaccrual, setting aside or payment of any dividend or other distribution in with respect to any shares of any capital stock of the Company or any optional redemption, purchase of the Company Subsidiaries (except for dividends or other acquisition of distributions by any of its securities;direct or indirect wholly-owned Company Subsidiary to the Company or to any wholly-owned Company Subsidiary). (vid) except as set forth There has not been any material change in Section 3.07(viany method of financial accounting or financial accounting practice or internal controls (including internal controls over financial reporting) of by the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, Company or any other Company Subsidiary. (e) Except to the extent required by applicable Laws, there has not been (A) any (x) increase in the compensation payable or to become payable to any executive the directors, officers or key employees of the Company or the Company Subsidiaries or (y) payment to any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security director or officer of the Company or the Company Subsidiaries of any Company Subsidiary; (viii) damagematerial bonus, destruction or other casualty loss with respect making to any material asset director or property owned, leased or otherwise used by officer of the Company or the Company Subsidiaries of any Company Subsidiary; (ix) incurrencematerial profit-sharing or similar payment, assumption or guarantee by grant to any director or officer of the Company or any the Company Subsidiary Subsidiaries of any Indebtedness other than rights to receive severance, termination, retention or Tax gross-up compensation or benefits (in each case, except for increases, payments or grants in the ordinary course of business and consistent with past practices; (xpractice) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans any establishment, adoption, entry into or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition amendment of any assets collective bargaining, bonus, profit sharing, thrift, compensation, employment, termination, severance or business other plan, agreement, trust, fund, policy or (B) modification, amendment, assignment, termination or relinquishment by arrangement for the Company or any Company Subsidiary benefit of any contractdirector, License officer or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets employee of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. Except as set forth on Schedule 2.9 hereto, since June 30, 1997, no event or circumstance has occurred resulting or reasonably likely to result in a Material Adverse Effect. Without limiting the generality of the foregoing, since that date there has not been, with respect to the Company: (a) Since the date of the Company Balance SheetAny change in its Business, except operations (as contemplated by this Agreementnow conducted or as presently proposed to be conducted), assets, properties or rights, prospects or condition (financial or otherwise), or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior combination thereof which reasonably could be expected to the date hereof, the Company has conducted its business only in the ordinary course and result in a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (iib) change Other than in the usual and ordinary course of business, any increase in amounts payable by the Company to or for the benefit of or committed to be paid by the Company to or for the benefit of any officer, director, stockholder, consultant, agent or employee of the Company, in its accounting methodsany capacity, principles or policiesin any benefits granted under any bonus, except as may be required by US GAAPstock option, profit sharing, pension, retirement, deferred compensation, insurance, or other direct or indirect benefit plan with respect to any such person; (iiic) change in the capital stock of the Company Any transaction entered into or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), carried out other than in the ordinary and usual course of its business, including without limitation, any transaction resulting in the incurrence of liabilities or obligations; (d) Any material change made in the methods of doing business consistent with past or in the accounting principles or practices or the method of application of such principles or practices; (ve) except as set forth in Section 3.07(v) of the Disclosure ScheduleAny mortgage, declarationpledge, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemptionlien, purchase security interest, hypothecation, charge or other acquisition of encumbrance imposed or agreed to be imposed on or with respect to any of its securitiesproperties that will not be discharged prior to the Closing Date except for financing statements filed by personal property lessors as a matter of notification only; (vif) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except Except in the ordinary course of business consistent with past practicesbusiness, any sale, lease or other disposition of, or any agreement to sell, lease or otherwise dispose of any of its properties, assets or services, individually or in the aggregate, in excess of $100,000; (viig) amendment Any purchase of any term of any outstanding security of the Company or any Company Subsidiaryagreement to purchase capital assets or any lease or any agreement to lease, as lessee, any capital assets, individually or in the aggregate, with a purchase price or carrying value in excess of $100,000; (viiih) damageAny modification, destruction or other casualty loss with respect to any material asset or property ownedwaiver, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modificationchange, amendment, assignmentrelease, rescission or termination of, or relinquishment by the Company accord and satisfaction with respect to, any material term, condition or any Company Subsidiary provision of any contract, License agreement, license or other rightinstrument to which the Company is a party, other than, than any satisfaction by performance in either case, transactions, commitments, contracts or agreements accordance with the terms thereof in the usual and ordinary course of business consistent with past practices and those contemplated by this Agreementits business; (xiii) amendmentAny declaration of, alteration or repeal (by merger, consolidation dividend or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment distribution to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) 's stockholders, purchase, redemption or reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with stock split, stock dividend, exchange or recapitalization or execution of any agreement in respect of the Series B Preferred Stockforegoing; (xvj) sale of (Any damage, destruction or an agreement to sell) Core Business Assets of similar loss, whether or not covered by insurance, adversely affecting the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the CompanyBusiness; or (xxk) any amendment to a Material Contract or Company Permit. (b) Neither Any commitment by the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate do any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganizationthe foregoing.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance Sheet, except Except as expressly contemplated by this Agreement, since March 31, 2007, no events have occurred which have had or disclosed would be reasonably expected to have, individually or in any Exchange Act Report filed after the aggregate, a Company Material Adverse Effect. From March 31, 2007 to the date of the Company Balance Sheet and prior to the date hereofthis Agreement, the Company has conducted its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of and the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than Subsidiaries have carried on and operated their respective businesses in all material respects in the ordinary course of business consistent with past practices;and (ii) there has been no: (va) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or other distribution in respect of any the capital stock of the Company, other than the declaration and payment by the Company or any optional redemption, purchase of regular quarterly cash dividends on the shares of Company Common Stock; (b) redemption or other acquisition by the Company of any of its securitiescapital stock; (vic) except as set forth in Section 3.07(vi) stock split, reverse stock split, combination or reclassification of the Disclosure Schedule, shares of Company Common Stock; (d) increase in the rate or establishment terms of compensation payable by the Company or any of the Company Subsidiaries to any of their respective directors, officers or employees whose annual base compensation exceeds $100,000, or grant or increase in the rate or terms of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase severance or other employee benefit plan, policy, agreement or arrangement with, for or in respect of any other increase in the compensation payable or to become payable to any executive of their respective directors, officers or key employees of the Company or any Company Subsidiarywhose annual base compensation exceeds $100,000, except in any such case for grants or increases (i) required pursuant to the terms of plans or agreements in effect on the date of this Agreement, (ii) occurring in the ordinary course of business consistent with past practicesbusiness, or (iii) required by Law; (viie) adoption or amendment (except as may be required by Law) of any Company Benefit Plan or any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any employee, director or former director or employee; (f) material change by the Company in accounting methods, principles or practices except as required by GAAP; (g) amendment of any term of any outstanding security of material Company Tax Return or the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the CompanyTax election; or (xxh) any amendment agreement or commitment, whether in writing or otherwise, to a Material Contract or Company Permittake any action described in clauses (a) through (g) above. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetSeptember 30, ------------------------------------ 1996 except as contemplated by this Agreement, Agreement or as disclosed in any Exchange Act Company SEC Report filed after the date of the Company Balance Sheet and prior to the date hereofsince September 30, 1996, the Company has and its Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices and practice and, since such date, there has not been any (ia) Material Adverse Effect; (ii) any change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiib) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any material asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, (vc) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and its Subsidiaries taken as a whole, except as set forth in Section 3.07(vthe ordinary course of business and consistent with past practice, (d) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company Shares or any optional redemption, purchase or other acquisition of any of its securities; , (vie) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in the benefits under, or the establishment of or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Subsidiary except as set forth in Section 3.8 of the Company SubsidiaryDisclosure Schedule, except in (f) any entry by the Company or any Subsidiary into any employment, consulting, termination or indemnification agreement with any officer or key employee of the Company or any Subsidiary or entry into any such agreement with any other person outside the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security except as set forth in Section 3.8 of the Company Disclosure Schedule, or (g) any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used agreement by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by Subsidiary to take any of the Company or any Company Subsidiary of any Indebtedness other than actions described in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those this Section 3.8 except as expressly contemplated by this Agreement; (xii) amendment. Between September 30, alteration or repeal (by merger1996, consolidation or otherwise) and the execution and delivery of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolventtaken, or seeking liquidationagreed to take, winding up or reorganization, arrangement, adjustment, protection, relief or composition any action that would constitute a breach of its debts under any Law relating to bankruptcy, insolvency or reorganizationSection 5.1 if taken after the date of this Agreement.

Absence of Certain Changes or Events. (a) Since From the date of the most recent audited financial statements included in the Filed Company Balance Sheet, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after SEC Documents to the date of the Company Balance Sheet and prior to the date hereofthis Agreement, the Company has conducted its business only in the ordinary course course, and in a manner consistent with past practices and during such period there has not been anybeen: (i) any event, change, effect, development, condition or occurrence that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any Company Common Stock or any repurchase for value by the Company of any Company Common Stock, other than quarterly cash dividends with respect to the Company Common Stock of (A) $0.18 per share with respect to the first quarter of 2005 and (B) $0.09 per share with respect to the second and third quarters of 2005, in each case with usual declaration, record and payment dates; (iii) any split, combination or reclassification of any Company Common Stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Common Stock; (iv) (A) any capital stock granting by the Company or any Company Subsidiary to any current or former director, officer, employee or independent contractor of the Company or any optional redemptionCompany Subsidiary (each, purchase or other acquisition a "Participant") of any loan or any increase in any type of its securitiescompensation, benefits, perquisites or any bonus or award, except for grants of normal cash bonus opportunities and normal increases of cash compensation (including compensation in connection with new hires), in each case in the ordinary course of business consistent with past practice or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (B) any payment of any bonus to any Participant, except for bonuses paid in the ordinary course of business consistent with past practice, (C) any granting by the Company or any Company Subsidiary to any Participant of any severance, change in control, termination or similar compensation, pay or benefits or increases therein, or of the right to receive any severance, change in control, termination or similar compensation, pay or benefits or increases therein, except (x) as was required under any employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed Company SEC Documents, (y) in the ordinary course of business consistent with past practice in connection with new hires to replace departed employees and (z) in the ordinary course of business consistent with past practice in connection with promotions made in the ordinary course of business consistent with past practice, or (D) any entry by the Company or any Company Subsidiary into, or any amendment of, any Company Benefit Agreement; (v) any damage, destruction or loss, whether or not covered by insurance, that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect; (vi) any change in accounting methods, principles or practices by the Company or any Company Subsidiary, except as set forth for any change which is not material or which is required by a change in Section 3.07(viGAAP or applicable Law; (vii) any material elections with respect to Taxes by the Company or any Company Subsidiary or settlement or compromise by the Company or any Company Subsidiary of any material Tax liability or refund; or (viii) any revaluation by the Company or any Company Subsidiary of any of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees assets of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company insofar as may have been required by applicable Law or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment not reasonably be expected to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company PermitAdverse Effect. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetJune 30, 1997, except as contemplated by this Agreement, as set forth in Section 3.1(i) of the Disclosure Schedule or disclosed in any Exchange Act Report the SEC Reports filed after since that date and up to the date of the Company Balance Sheet and prior to the date hereofthis Agreement, the Company has and its subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices and practice and, since such date, there has not been any (i) any condition, event or occurrence which, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect; , (ii) any termination or cancellation of, or any modification to, any agreement, arrangement or understanding which has had or would reasonably be expected to have a Material Adverse Effect, (iii) any material change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), its material assets other than in the ordinary course of business business, consistent with past practices; practice, (v) except as set forth in Section 3.07(vany entry by the Company or any of its subsidiaries into any commitment or transactions material to the Company, (vi) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of any capital stock the shares of the Company Common Stock or any optional redemption, purchase or other acquisition of any of its securities; , (vivii) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit planplan or agreement or arrangement, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except of its subsidiaries other than in the ordinary course of business consistent with past practices; practice or as was required under employment, severance or termination agreements in effect as of June 30, 1997, (viiviii) amendment of any term of any outstanding security bonus paid to the employees of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness its subsidiaries other than in the ordinary course of business and consistent with past practices; practice, (ix) any sale or transfer of any material assets of the Company or its subsidiaries other than in the ordinary course of business and consistent with past practice or (x) making of any loan, advance or capital contribution to or investment in any Person person in an aggregate amount in excess of $100,000 by the Company or any Company Subsidiary other than subsidiary (A) loansexcluding any loan, advances advance or capital contributions to or investments in any wholly owned Company Subsidiarycontribution to, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactionsinvestment in, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment wholly owned subsidiary and except for drawdowns by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitits credit facility). (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetDecember 31, 2002, except as contemplated by this Agreement, Agreement or disclosed in any Exchange Act Report filed after the date as set forth on Schedule 3.08 of the Company Balance Sheet and prior to the date hereofDisclosure Schedule, the Company has and the Subsidiaries have conducted its business only their businesses in the ordinary course and in a manner consistent with past practices practice, and there has not been any (ia) any event or events having a Company Material Adverse Effect; , (iib) any change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiic) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, (vd) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, except as set forth in Section 3.07(vthe ordinary course of business and consistent with past practice, (e) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; , (vif) except as set forth any material damage, destruction or loss to property, whether or not covered by insurance, (g) any settlement or compromise of any material litigation, action or claim, or (h) other than pursuant to the contracts and Plans expressly referred to in Section 3.07(vi) of the Disclosure Schedule3.10 hereof, any increase in in, establishment or establishment material amendment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except for salary increases and benefit accruals in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance Sheet, except Except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereofSEC Documents, since September 30, 1996, the Company has and the Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices practice, and there has not occurred any event, condition, circumstance, change or development (whether or not in the ordinary course of business) that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth on Schedule 3.11 hereto or as disclosed in any SEC Documents filed with the SEC and publicly available prior to November 1, 1997, since September 30, 1996, there has not been any (i) Material Adverse Effect; (ii) any change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiiii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (includingof its or any Subsidiary's material assets, without limitationincluding but not limited to, any writing down of the value of inventory or writing-off of notes or accounts receivable), any Rights to Receive other than in the ordinary course of business consistent with past practices; practice, (viii) except any entry outside the ordinary course of business by the Company or any Subsidiary into any commitments or transactions material, individually or in the aggregate, to the Company and the Subsidiaries taken as set forth in Section 3.07(va whole, (iv) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of the shares of Common Stock or, any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; , other than semi-annual cash dividends of $.02 per share on outstanding Common Stock consistent with past practices, (v) any grant or issuance of any Equity Securities of the Company or any Subsidiary; or (vi) except as set forth in Section 3.07(vi) of the Disclosure Scheduleany increase in, increase in or establishment of or amendment of any Employment, Consulting or Severance Agreement, bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, including without limitation, limitation the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit planplan or agreement or arrangement, or any other increase in the compensation payable or to become payable to any executive present or former directors, officers or key employees of the Company or any Company Subsidiary, except for increases in compensation in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. Except as disclosed in the ------------------------------------ SEC Documents filed and publicly available prior to the date of this Agreement (athe "Filed SEC Documents") Since and except as disclosed in writing by Evergreen to the Company prior to the execution and delivery of the Agreement, or as it relates to the Viacom Transaction (as defined in Section 10.9) or as otherwise agreed to in writing after the date hereof by the Company and Evergreen, since the date of the Company Balance Sheetmost recent audited financial statements included in the Filed SEC Documents, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet Evergreen and prior to the date hereof, the Company has its subsidiaries have conducted its their business only in the ordinary course and in a manner consistent with past practices course, and there has not been any (i) any change which could reasonably be expected to have an Evergreen Material Adverse Effect; Effect (including as a result of the consummation of the transactions contemplated by this Agreement), (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect of to any Of Evergreen's currently outstanding capital stock of the Company stock, (iii) any split, combination or any optional redemption, purchase or other acquisition reclassification of any of its securities; (vi) except as set forth in Section 3.07(vi) of outstanding capital stock or any issuance or the Disclosure Schedule, increase in or establishment authorization of any bonusissuance of any other securities in respect of, insurancein lieu of or in substitution for shares of its outstanding capital stock, severance(iv) (x) any granting by Evergreen or any of its subsidiaries to any director, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase officer or other employee benefit plan, or independent contractor of Evergreen or any other of its subsidiaries of any increase in the compensation payable or to become payable to any executive officers or key employees acceleration of the Company or any Company Subsidiarybenefits, except in the ordinary course of business consistent with past practices; prior practice or as was required under employment agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents, (viiy) amendment any granting by Evergreen or any of its subsidiaries to any director, officer or other employee or independent contractor of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiaryincrease in, or (B) loans acceleration of benefits in respect of, severance or advances to the Company by termination pay, or pay in connection with any Company Subsidiary; (xi) (A) transactionschange of control of Evergreen, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements except in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendmentprior practice or as was required under any employment, alteration severance or repeal (by merger, consolidation or otherwise) of any provision termination agreements in effect as of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions date of the Purchaser as most recent audited financial statements included in the holder of the Series B Preferred Stock, Warrants Filed SEC Documents or Common Stock at the Closing (z) any entry by Evergreen or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock its subsidiaries into shares that would have a preference over any employment, severance, change of control, or on parity termination or similar agreement with the Series B Preferred Stock; any director, executive officer or other employee or independent contractor, or (xvv) sale of (any change in accounting methods, principles or an agreement to sell) Core Business Assets of the Company practices by Evergreen or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcysubsidiaries materially affecting its assets, insolvency liability or reorganizationbusiness, except insofar as may have been required by a change in generally accepted accounting principles.

Absence of Certain Changes or Events. Except for (ai) Since matters set forth on SCHEDULE 2.8, (ii) matters disclosed in the date of the Company Balance Sheet, except Annual Financial Statements or (iii) as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof, the Company has conducted not, since December 31, 1997, except as otherwise specified herein: (a) undergone any change in its condition (financial or otherwise), properties, assets, liabilities, business only or operations, except for changes in the ordinary course and of business which have not either individually or in the aggregate had a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (iib) change by the Company in its accounting methods, principles or policies, except as may be set forth on SCHEDULE 2.8, changed any of its methods of accounting or accounting practices or classifications of assets or liabilities, or failed to maintain its books of account in the usual, regular and ordinary manner in accordance with GAAP unless required by US regulation or GAAP; (iiic) change modified the material terms of, or canceled or terminated, any Material Contract (as defined below) other than in the capital stock ordinary course of the Company or any Company Subsidiarybusiness; (ivd) revaluation by terminated, discharged or received any written notice regarding the Company resignation, discharge or termination of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), officer other than in the ordinary course of business consistent with past practicesor as contemplated by this Agreement; (ve) except since December 31, 1995, established or adopted any Benefit Plan (as set forth in Section 3.07(v) defined below), or increased the amount of the Disclosure Schedulewages, declarationbonus, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemptionsalary, purchase commissions, fringe benefits or other acquisition of compensation or remuneration payable to, any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Scheduledirectors, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiaryemployees, except in any case in the ordinary course of business consistent in accordance with past practicespractice and, in the case of the senior management employees and Shareholders (listed on SCHEDULE 2.8(e)), in an amount not exceeding 3% in any one case or a payment of bonuses in an aggregate amount of $25,000; (viif) amendment since December 31, 1995, declared, set aside, made or paid any dividend or other distribution in respect of its capital stock or purchased or redeemed, directly or indirectly, any term shares of its capital stock, or split up, combined, reclassified, redeemed, repurchased or otherwise reacquired any outstanding security of the Company or any Company Subsidiaryits capital stock other than distributions to shareholders to pay income taxes and charged against their respective Accumulated Adjustments Account, if applicable; (viiig) damagesince December 31, destruction 1995, issued or sold any shares of its capital stock of any class or any subscriptions, options, warrants, calls or other casualty loss with respect rights to purchase directly or indirectly any material asset or property owned, leased or otherwise used by the Company such shares or any Company Subsidiarysecurities directly or indirectly convertible into or exchangeable for such shares or made any other change in its capital structure; (ixh) incurrencesince December 31, assumption 1995, except for borrowings under its normal line of credit and Debt described in SCHEDULE 2.8(h), incurred any direct or guarantee by contingent liability for borrowed money or guaranteed the Company or any Company Subsidiary monetary obligations of any Indebtedness other person or entity other than indebtedness to be included in the Debt to be discharged at Closing, or made any monetary investment in, advance to or loan to any person or entity other than in the ordinary course of business and consistent with past practicesbusiness; (xi) making mortgaged, pledged or subjected to any material lien, lease, security interest or other charge or encumbrance any of any loanits properties or assets, advance tangible or capital contribution intangible, except those securing Debt to or investment in any Person by the Company or any Company Subsidiary other than be discharged at Closing and except for Permitted Liens (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiaryas defined below); (xij) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to made any material disposition change in its practices, operations or acquisition of any assets policies with respect to the method for selling goods or business or (B) modificationservices, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other rightmethod for accounting for sales, the conduct of accounts receivable collection or accounts payable payment activities or the maintenance of inventory levels other than, in either case, transactions, commitments, contracts or agreements than changes in the ordinary course of business consistent with past practices and those contemplated by this Agreementbusiness; (xiik) amendmentsince December 31, alteration 1995, merged or repeal (by merger, consolidation consolidated with or otherwise) of into any provision other entity or initiated or participated in negotiations with any person or entity with respect to any of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated hereinforegoing; (xiiil) creation of implemented or adopted any new class of capital stock of the Companychange in its tax methods, principles or elections; (xivm) reclassification since December 31, 1995, acquired or disposed of any of the Company's material assets or properties or made any capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase improvement other than in the authorized number ordinary course of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Companybusiness; or (xxn) suffered any amendment damage, destruction or loss (whether or not covered by insurance) which has had or could reasonably be expected to have a Material Contract or Company PermitAdverse Effect on the Company. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since December 31, 2009, the date of the Company Balance Sheet, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereofCompany, the Company has Subsidiaries and CPS have conducted its business only their respective businesses in all material respects in the ordinary course and in a manner of business consistent with past practices and practice. (b) Since December 31, 2009, there has not been anyany Company Material Adverse Effect or any change, event, development, condition, occurrence or effect that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect. (c) There has not been any action taken by the Company, any Company Subsidiary or CPS from December 31, 2009 through the date of this Agreement to: (i) Material Adverse Effectdeclare, set aside, make or pay any dividend or other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of its capital stock (other than dividends paid by a wholly-owned Company Subsidiary to the Company or another wholly-owned Company Subsidiary) or enter into any agreement with respect to the voting or registration of its capital stock; (ii) change by reclassify, combine, split, subdivide or amend the Company in terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its accounting methodscapital stock, principles other Equity Interests or policies, except as may be required by US GAAPany other securities; (iii) make any change in the capital stock of the Company accounting policies, practices, principles, methods or any Company Subsidiaryprocedures, other than as required by GAAP or by a Governmental Entity; (iv) revaluation by make or change any material tax election or settle or compromise any material liability for Taxes; (v) write up, write down or write off the book value of any assets, in the aggregate, in excess of $500,000, except for depreciation and amortization in accordance with GAAP consistently applied; (vi) initiate, compromise or settle any litigation, proceeding or investigation that is material to the Company, CPS or the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable)Subsidiaries taken as a whole, other than settlements or compromises of litigation (A) where the amount paid does not exceed $500,000 or (B) that do not involve equitable relief or admission of wrongdoing or misconduct; or (vii) except as required to comply with applicable Law or any Company Benefit Plan as in effect as of December 31, 2009, (A) increase the compensation or benefits payable to its directors, officers or employees, except for increases in salaries or wages in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or ; (B) loans grant any material severance or advances to termination pay which will become due and payable on or after the Company by Effective Time; or (C) adopt, enter into, establish, amend, modify or terminate any Company Subsidiary; (xi) (A) transactionsBenefit Plan, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating except to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, reflect changes in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitplan administration. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. Except as disclosed in the SEC Documents (aincluding exhibits thereto) Since filed since January 1, 1998 and publicly available prior to the date hereof (the "Filed SEC Documents"), and except as set forth on Schedule 4.8, since the date of the Company Balance Sheet, except as contemplated by this Agreement, or disclosed most recent audited financial statements included in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereofFiled SEC Documents, the Company has and its Subsidiaries have conducted its business their respective businesses only in the ordinary course and in a manner consistent with past practices prior practice, and there has not been any (ia) Material Adverse Effect; any material adverse change, (iib) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (c) any split, combination or reclassification of any of its capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, (d) (i) any capital stock of granting by the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable Subsidiary to any executive officers or key employees officer of the Company or of any Company Subsidiaryincrease in compensation, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security practice as was required under employment agreements in effect as of the Company or date of the most recent audited financial statements included in the Filed SEC Documents, (ii) any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used granting by the Company or any Company Subsidiary; Subsidiary to any officer, employee, director or consultant of any increase in severance or termination pay, except as was required under any employment, severance or termination agreements in effect as of the date of the most recent audited financial statements included in the Filed SEC Documents or (ixiii) incurrence, assumption or guarantee any entry by the Company or any Company Subsidiary of into any Indebtedness other than employment, severance or termination agreement with any officer, employee, director or consultant, (e) any damage, destruction or loss to property, whether or not covered by insurance, that, individually or in the ordinary course of business aggregate, has not been cured and consistent with past practices; would be reasonably expected to have, individually or in the aggregate, a material adverse effect, (xf) making of any loanchange in accounting methods, advance principles or capital contribution to or investment in any Person practices by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, (g) any delivery of a notice of non-renewal or (B) loans or advances any other failure to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, renew contracts or agreements entered into by to which the Company or any Company Subsidiary relating to is a party which are material, individually or in the aggregate, or (h) any material disposition or acquisition loss of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements employee who earned more than $75,000 in the ordinary course of business consistent with past practices most recent fiscal year (in salary, bonus and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitcash compensation). (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance Sheet, except Except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereofSEC Documents, since January 1, 2000, the Company has and the Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices practice, and there has not occurred any event, condition, circumstance, change or development (whether or not in the ordinary course of business) that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth on Schedule 3.10 hereto or as disclosed in any SEC Documents filed with the SEC and publicly available prior to January 1, 2000, since January 1, 2000, there has not been any (i) Material Adverse Effect; (ii) any change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiiii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (includingof its or any Subsidiary's material assets, without limitationincluding but not limited to, any writing down of the value of inventory or writing-off of notes or accounts receivable), any Rights to Receive other than in the ordinary course of business consistent with past practices; practice, (viii) except any entry outside the ordinary course of business by the Company or any Subsidiary into any commitments or transactions material, individually or in the aggregate, to the Company and the Subsidiaries taken as set forth in Section 3.07(va whole, (iv) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of the shares of Common Stock or, any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; , other than semi-annual cash dividends of $.02 per share on outstanding Common Stock consistent with past practices, (v) any grant or issuance of any Equity Securities of the Company or any Subsidiary; or (vi) except as set forth in Section 3.07(vi) of the Disclosure Scheduleany increase in, increase in or establishment of or amendment of any Employment, Consulting or Severance Agreement, bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, including without limitation, limitation the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit planplan or agreement or arrangement, or any other increase in the compensation payable or to become payable to any executive present or former directors, officers or key employees of the Company or any Company Subsidiary, except for increases in compensation in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since Except as disclosed in the Seller SEC Reports filed prior to and including the date of the Company Balance Sheet, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after since September 30, 2004 to the date of this Agreement, Seller and the Company Balance Sheet and prior to the date hereof, the Company has Seller Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices practice and, except as disclosed in the Seller SEC Reports filed prior to and including the date of this Agreement, since September 30, 2004 to the date of this Agreement, there has not been any (i) any change in the financial condition, results of operations or business of Seller and any of the Seller Subsidiaries having a Material Adverse Effect; Effect on Seller and the Seller Subsidiaries, taken as a whole, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any assets of Seller or any of the Seller Subsidiaries having a Material Adverse Effect on Seller and the Seller Subsidiaries, taken as a whole, (iii) any change by the Company Seller in its accounting methods, principles or policiespractices, except as may be for any change required by US GAAP; (iii) reason of a concurrent change in to GAAP or Regulation S-X promulgated by the capital stock of the Company or any Company Subsidiary; SEC, (iv) any revaluation by the Company Seller of any asset (includingof its assets in any material respect, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of any capital stock shares of the Company Seller Common Stock or any optional redemption, purchase or other acquisition of any of its securities; securities or any of the securities of any Seller Subsidiary, except pursuant to Seller repurchase rights arising upon an individual’s termination of service with Seller or any Seller Subsidiary, (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in or establishment of any bonusthe wages, insurancesalaries, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, fringe benefits or any other increase in the compensation payable or to become perquisites payable to any executive officers officer, employee, or key employees director from the amount thereof in effect as of January 1, 2004, grant of any severance or termination pay, the Company entry into of any contract to make or grant any Company Subsidiaryseverance or termination pay, or the payment of any bonus, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than and in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business a manner consistent with past practices and those contemplated by this Agreement; or pursuant to agreements outstanding on such date, (xiivii) amendmentany strike, alteration work stoppage or repeal slow-down, (by merger, consolidation or otherwiseviii) the execution of any provision of the Certificate of Incorporation collective bargaining agreement, contract or the By-lawsother agreement or understanding, that would adversely affect the relative rightsto which Seller is a party, preferenceswith a labor union or organization, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment (ix) to the Certificate knowledge of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of Seller, any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitunion organizing activities. (b) To Seller’s knowledge, no third party has used, without permission, the corporate name, the trademarks, tradenames, service marks, logos, symbols or similar intellectual property of Seller or any Seller Subsidiary in connection with the marketing, advertising, promotion or sale of such third party’s products or services. Neither the Company Seller nor any Company Seller Subsidiary has made is a general assignment for the benefit of creditors, and no proceeding (party to any joint marketing or other affinity marketing program with a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganizationthird party.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance Sheet, except Except as contemplated by this Agreement, Agreement (including those actions not prohibited under Section 5.1) or the Transactions and except for changes disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet SEC Documents filed and publicly available prior to the date hereofof this Agreement (as amended to the date of this Agreement, the "Company Filed SEC Documents"), since December 31, 2002, the Company has and its Subsidiaries have conducted its their business only in the ordinary course course, and in a manner consistent with past practices and since such date there has not been any (a) any Material Adverse Change in the Company, (b) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock (other than as expressly permitted by the terms of Section 5.1(a)), (c) any purchase, redemption or other acquisition of any shares of capital stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, calls or rights to acquire such shares or other securities; (d) any split, combination or reclassification of any of the Company's capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of the Company's capital stock, (e) (i) Material Adverse Effect; any granting by the Company or any of its Subsidiaries to any current or former director, executive officer or other employee of the Company or its Subsidiaries of any increase in compensation, bonus or other benefits, except for normal increases in cash compensation to non-executive employees in the ordinary course of business consistent with past practice or as was required under any employment agreements in effect as of the date of the most recent financial statements included in the Company Filed SEC Documents and other than as expressly permitted by the terms of Section 5.1(k), (ii) change any granting by the Company or any of its Subsidiaries to any such current or former director, executive officer or employee of any increase in severance or termination pay, except to non-executive employees in the ordinary course of business consistent with past practice, (iii) any entry by the Company or any of its Subsidiaries into, or any amendments of, any Benefit Plan with any current or former director, executive officer or employee, except with non-key employees in the ordinary course of business consistent with past practice, (iv) any amendment to, or modification of, any Company Stock Option, (v) except insofar as may have been required by a change in GAAP, any change in accounting methods, principles or policiespractices by the Company or any of its Subsidiaries materially affecting their respective assets, except as may be required by US GAAP; liabilities, results of operations or businesses, (iiivi) change any Tax election that, individually or in the capital stock aggregate, would reasonably be expected to adversely affect in any material respect the Tax liability or Tax attributes of the Company or any Company Subsidiary; of its Subsidiaries, (ivvii) revaluation by any settlement or compromise of any material income Tax liability, (viii) any acquisition, sale or transfer of any material asset of the Company or any of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), its Subsidiaries other than in the ordinary course of business consistent with past practices; practice, (vix) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used entering into by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of its Subsidiaries of any Indebtedness material contract or agreement, or material amendment or termination of any material contract or agreement (other than in the ordinary course of business and consistent with past practices; (xbusiness) making of any loan, advance or capital contribution to or investment in any Person default by the Company or any of its Subsidiaries under, any material Contract to which the Company Subsidiary other than or any of its Subsidiaries is a party or by which it is bound (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company Knowledge of the Company, by any Company Subsidiary; other party thereto), (xix) (A) transactions, commitments, contracts or agreements entered into any revaluation by the Company or any Company Subsidiary relating to any material disposition or acquisition of its Subsidiaries of any of their respective material assets or business (xi) except as would not individually or (B) modificationin the aggregate reasonably be expected to have a Material Adverse Effect on the Company, amendmentany lapse, assignmentreversion, termination or relinquishment by the Company or any Company Subsidiary expiration of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company PermitIntellectual Property Rights. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since Except as set forth in the SEC Reports filed subsequent to December 31, 2006 and prior to the date of this Agreement, as set forth in Section 4.08 of the Company Balance SheetDisclosure Letter, except or as expressly contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet since December 31, 2006 and prior to the date hereofof this Agreement, each of the Company and the Subsidiaries has conducted its business only in the ordinary course and in a manner consistent with past practices and practice. Without limiting the foregoing, there has not been anynot, directly or indirectly, occurred: (i) any event, change, effect or circumstance, including any damage to, destruction or loss of any asset of the Company or a Subsidiary (whether or not covered by insurance) constituting or that could reasonably be expected to result in a Material Adverse Effect; (ii) any amendment or change by in the organizational documents of the Company in its accounting methods, principles or policies, except as may be required by US GAAPany Subsidiary; (iii) any change in the capital stock accounting reporting methods, principles, periods, practices, policies or procedures of the Company or any Company SubsidiarySubsidiary (other than as required by GAAP subsequent to the date of this Agreement); (iv) revaluation any acquisition, lease or license from any person (by the Company merger, consolidation, acquisition of stock or assets or otherwise) or sale, lease, license, disposal or Encumbrance (by merger, consolidation, sale of stock or assets or otherwise), of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), assets other than in the ordinary course of business consistent with past practicesbusiness; (v) any waiver of a valuable right or of a debt owed to the Company or any Subsidiary or satisfaction or discharge of any Encumbrance or payment of any liability of the Company or any Subsidiary, except in the ordinary course of business in an aggregate amount that is not material; (vi) change in any compensation arrangement or contract with any present or former employee, officer, director, consultant, stockholder or other service provider of the Company or any Subsidiary or grant of any severance or termination pay to any such present or former employee, officer, director, consultant, stockholder or other service provider or increase of any benefits payable under any severance or termination pay policies or the establishment, amendment or termination of any Plan or any increase in benefits made or proposed to be made under such Plan, except as set forth required by applicable Law or grant of any Company Stock Awards or other awards under any Company Stock Award Plan, other than (A) required pursuant to the terms of any Plan as in Section 3.07(veffect on the date of this Agreement or (B) of the Disclosure Schedule, required by Law; (vii) declaration, setting aside or payment of any dividend or other distribution in with respect of any capital stock to Equity Interests of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damagesplit, destruction combination or other casualty loss with respect to any material asset or property owned, leased or otherwise used by reclassification of Equity Interests of the Company or any Subsidiary or any issuance of or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for, shares of its Equity Interests of the Company or any Subsidiary; (ix) incurrencewrite up, assumption write down or guarantee by write off of the book value of any assets of the Company and or any Company Subsidiary of any Indebtedness Subsidiary, other than in the ordinary course of business and consistent with past practicesor as required by GAAP; (x) making of any loanmaking, advance revoking or capital contribution to or investment in any Person changing by the Company or any Subsidiary of any Tax election, changing by the Company or any Subsidiary other than of any method of Tax accounting, settlement or compromise by the Company or any Subsidiary of any liability for Taxes, filing by the Company or any Subsidiary of any amended Tax Return or claim for refund, surrendering any right of the Company or any Subsidiary to claim a Tax refund, or consent by the Company or any Subsidiary to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; (Axi) loans, advances or capital contributions to by the Company or any Subsidiary to, or investments in in, any other Person, except for (A) loans, advances, capital contributions or investments between any wholly owned Subsidiary and the Company or another wholly owned Subsidiary, or (B) loans or employee advances to for expenses in the Company by any Company Subsidiaryordinary course of business; (xixii) (A) transactions, commitments, contracts authorization or agreements entered into entry by the Company or any Company Subsidiary relating into any commitment with respect to any material disposition or acquisition of capital expenditure; (xiii) any assets or business or other action that would require Parent's consent under Section 6.01; or (Bxiv) modification, amendment, assignment, termination or relinquishment any contract by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment Subsidiaries to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of do any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitforegoing. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date ------------------------------------ December 31, 1998, except as set forth in Section 3.08 of the Company Balance Sheet, except Disclosure Schedule or as contemplated by this Agreement, Agreement or disclosed in any Exchange Act SEC Report filed after the date of the Company Balance Sheet since December 31, 1998 and prior to the date hereofof this Agreement, the Company has and the Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices and practice and, since December 31, 1998, there has not been any (i) any Material Adverse Effect; Effect with respect to the Company, (ii) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material Adverse Effect with respect to the Company, (iii) any material change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) any revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, (v) except any failure by the Company to revalue any asset in accordance with GAAP consistent with past practice, (vi) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as set forth in Section 3.07(va whole, (vii) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; securities or any securities of any Subsidiary or of Durakon Mexican S.A. de C.V., (viviii) except other than as set forth in any contract (as in effect on the date hereof) referred to in Section 3.07(vi) of the Disclosure Schedule3.10, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, awards or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except customary increases in compensation to employees generally incurred in the ordinary course of business consistent with past practices; practice, (viiix) amendment of any term of entering into, renewal, modification or extension of, any outstanding security contract, arrangement or agreement with any affiliate of the Company Company, or (x) any Company Subsidiary; (viii) damageentering into, destruction renewal, modification or extension of, any contract, arrangement or agreement with any other casualty loss party having, individually or in the aggregate, a Material Adverse Effect with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date December 31, 2004, except as specifically contemplated by, or as disclosed in, this Agreement or Section 3.10 of the Company Balance SheetDisclosure Schedule, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date each of the Company Balance Sheet and prior to the date hereof, the Company its Subsidiaries has conducted its business only in, and has not engaged in any material transaction other than according to, the usual and ordinary course and in a manner consistent with past practices and practice and, since such date, there has not been anybeen: (ia) any Material Adverse EffectEffect with respect to the Company circumstance, occurrence or development (including any adverse change with respect to any circumstance, occurrence or development existing on or prior to December 31, 2004) which, individually or in the aggregate, would have a Material Adverse Effect with respect to the Company; (iib) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiaryof its Subsidiaries, whether or not covered by insurance; (ixc) incurrenceother than regular quarterly dividends on Company Shares of not in excess of $0.15 per Share, assumption any declaration, setting aside or guarantee by the Company or any Company Subsidiary payment of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License dividend or other rightdistribution in cash, other than, stock or property in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision respect of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any of its Subsidiaries; (d) any material change in any method of accounting or accounting practice by the Company Subsidiary, or its Subsidiaries; (e) any material increase in the compensation payable or that could become payable by the Company to officers or key employees or any merger, consolidation amendment of any of the Benefit Plans other than (i) increases or combination of amendments in the ordinary and usual course consistent with past practice or (ii) pursuant to any employment agreements already in existence prior to the date hereof that the Company or any Company Subsidiary of its Subsidiaries has with another entity; (xvi) increase in the authorized number of shares of Common Stock any officers or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Companykey employees; or (xxf) any amendment agreement to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate do any of them a bankrupt or insolventthe foregoing, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganizationunless otherwise permitted herein.

Absence of Certain Changes or Events. (a) Since the date Except as set forth on Schedule 5.7 of the Company Balance SheetDisclosure Schedules, except as contemplated by this Agreementsince August 31, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof2014, the Company has conducted its business only in the ordinary course and in a manner consistent with past practices practice and there has not been any (i) no Material Adverse Effect; (ii) change by . Without limiting the Company in its accounting methodsforegoing, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) on Schedule 5.7 of the Disclosure ScheduleSchedules, declarationsince August 31, setting aside or payment of any dividend or distribution in respect of any capital stock of 2014, the Company has not: (a) purchased or any optional redemption, purchase or other acquisition of redeemed any of its securities; securities (vi) except as set forth in Section 3.07(vi) including shares of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awardsCommon Stock), or restricted stock awards)granted or issued any option, stock warrant or other right to purchase or acquire any such securities; (b) paid, cancelled, incurred, waived, settled, discharged or satisfied any Debt, claim, action, liability or other employee benefit planobligation (whether absolute, accrued, contingent or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiaryotherwise), except in the ordinary course of business consistent with past practices; practice; (viic) amendment encumbered any of its properties or assets, tangible or intangible, except for Encumbrances incurred in the ordinary course of business consistent with past practice; (d) granted any term of increase in the salaries or other compensation payable or to become payable to, or any outstanding security advance or loan to, the Stockholders or any officer, director or employee of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than normal increases for employees other than officers not in excess of five percent (5%) made in the ordinary course of business and consistent with past practices; practice); (xe) making entered into (or amended) any employment, severance or similar agreement with any Stockholder, director, officer or employee or hired any new employee (other than to replace a terminated employee); (f) adopted or amended any Benefit Plan or any employment policy relating to vacation pay, sick pay, disability coverage, severance pay or otherwise relating to any employee of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital failed to make contributions to any Benefit Plan in accordance with past practice; (g) suffered any change or, to the knowledge of the Stockholders or investments the Company, received any threat of any change in any wholly owned Company Subsidiaryof its relations with, or (B) loans or advances any loss or, to the Company by knowledge of the Stockholders or the Company, threat of loss of, any Company Subsidiary; (xi) (A) transactionsof the suppliers, commitmentsclients, contracts distributors, customers or agreements entered into by employees that are material to the Company business of the Company, including any threat made on or any Company Subsidiary relating prior to any material disposition or acquisition the Closing Date of any assets loss or business change which may result from the transactions contemplated by this Agreement; (h) disposed of or (B) modificationfailed to keep in effect any rights in, amendment, assignment, termination to or relinquishment by for the Company or any Company Subsidiary use of any contractfranchise, License license, permit or other rightcertificate material to the business of the Company; (i) changed any method of keeping of their respective books of account or accounting practices; (j) disposed of or failed to keep in effect any rights in, other thanto or for the use of any of the Intellectual Property Rights material to the business of the Company; (k) sold, in either casetransferred or otherwise disposed of any assets, transactionsproperties or rights of any of the business of the Company, commitments, contracts or agreements except inventory sold in the ordinary course of business consistent with past practices and those contemplated by this Agreement; practice; (xiil) amendmententered into any transaction, alteration agreement or repeal (by mergerarrangement with any Stockholder, consolidation director, officer, employee or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets Affiliate of the Company or any Company Subsidiary, or any merger, consolidation or combination “associates” (as defined in the rules and regulations of the Securities and Exchange Commission) of the Company or any Company Subsidiary with another entity; (xvi) increase other than the payment of salaries to employees in the authorized number ordinary course of shares business; (m) changed or modified in any manner its existing capital expenditure policies, procedures and practices, including the deferral of Common Stock or shares of preferred stock of any capital expenditures contemplated by the Company; ’s 2014 budget or operating plans; (xviin) increase changed or modified in the authorized number any manner its existing credit, collection, and payment policies, procedures, and practices with respect to accounts receivable and accounts payable, respectively, including acceleration of shares collections of receivables, failure to make or issuance delay in making collections of receivables (whether or not past due), acceleration of payment of payables or failure to pay or delay in payment of payables; (o) incurred any material damage, destruction, theft, loss or business interruption; (p) made any declaration, payment or setting aside for payment of any additional Series A Preferred Stock; dividend or other distribution (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtainwhether in cash, equity or property) with respect to any securities of the Company; or (xxq) made any amendment to change in its Tax elections or accounting methods, received a Material Contract ruling, entered into any closing agreement, settlement or Company Permit. compromise of any claim or assessment, in each case, in respect of Taxes; (br) Neither the Company nor waived or released any Company Subsidiary has made a general assignment for the benefit material right or claim of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or incurred any Company Subsidiary seeking modifications, amendments or terminations of any Contracts which are in the aggregate materially adverse to adjudicate the Company; or (s) agreed to do any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization(a) through (r) above.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetOctober 3, 2004, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof, the Company has its Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices and practice and, since October 3, 2004, there has not been anybeen: (ia) any change in the business, operations, financial condition, assets or liabilities (including, without limitation, contingent liabilities) of the Company or any of its Subsidiaries having, or reasonably likely to have, individually or in the aggregate, a Material Adverse Effect; (iib) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or any of its Subsidiaries and having, or reasonably likely to have, individually or in the aggregate, a Material Adverse Effect; (c) any change by the Company in its financial or tax accounting methods, principles or policies, except as may be required by US GAAPpractices; (iiid) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practice; (e) any entry by the Company or any of its Subsidiaries into any commitment or transaction material to the Company and its Subsidiaries taken as a whole except in the ordinary course of business consistent with past practices; (vf) except as set forth in Section 3.07(v) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities;; or (vig) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiaryof its Subsidiaries, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date Except as described in Section 3.9 of the Company Balance Sheet, Disclosure Letter and except as contemplated by this Agreement, or disclosed set forth in any Exchange Act Company SEC Report filed after the date of the Company Balance Sheet and prior to the date hereof, since March 31, 1999, the Company has and the Company Subsidiaries have conducted its business only their businesses in the ordinary course and in a manner consistent with past practices and practice and, since such date, except as permitted by Section 5.1 of this Agreement with respect to clauses (c-i) below there has not been anybeen: (ia) any Material Adverse EffectEffect on the Company; (iib) any damage, destruction or other casualty loss with respect to any asset or property owned, leased or otherwise used by the Company or any Company Subsidiaries, whether or not covered by insurance, which damage, destruction or loss, individually or in the aggregate, has resulted or could reasonably be expected to result in a Material Adverse Effect on the Company; (c) any material change by the Company in its or any Company Subsidiary's accounting methods, principles or policiespractices, except as may be required by US GAAPGAAP or by applicable Law; (iiid) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company Shares or any optional redemption, purchase or other acquisition of any of its the Company's securities; (vie) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in the compensation or benefits or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, awards or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, in each case except in the ordinary course of business consistent with past practicespractice or except as required by applicable Law; (viii) amendment of any term of any outstanding security of the Company incurrence or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness indebtedness for borrowed money or (ii) any guarantee, endorsement or other incurrence or assumption material liability (whether directly, contingently or otherwise) by the Company or any Company Subsidiary for the obligations of any other person (other than any wholly owned Company Subsidiary), in each case other than in the ordinary course of business and consistent with past practicespractice; (xg) any creation or assumption by the Company or any Company Subsidiary of any Lien on any material asset of the Company or any Company Subsidiary, other than in the ordinary course of business, consistent with past practice; (h) any making of any loan, advance or capital contribution to or investment in any Person person by the Company or any Company Subsidiary Subsidiary, other than (A) loansin the ordinary course of business, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary;consistent with past practice; or (xii) (Ai) transactions, commitments, contracts or agreements any Contract entered into by the Company or any Company Subsidiary relating to any material acquisition or disposition or acquisition of any assets or business business, or (Bii) any modification, amendment, assignment, assignment or termination of or relinquishment by the Company or any Company Subsidiary of any contractrights under any other Contract (including any insurance policy naming it as a beneficiary or a loss payable payee) that does or could reasonably be expected to have, License individually or other rightin the aggregate, a Material Adverse Effect on the Company, other than, in either case, than transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and practice or those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance Sheet, except Except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereofFinancial Statements or in Schedule 6.01(l), (i) since December 31, 2005, the Company Issuer has conducted its business only in the ordinary course and in a manner substantially consistent with past practices practice and (ii) since December 31, 2005, there has not been anybeen: (i1) Material Adverse Effectany material damage, destruction or loss (not covered by insurance) with respect to any material asset of any Obligor; (ii2) any change by the Company any Obligor in its accounting methods, principles or policiespractices, except as may be required or any changes in depreciation or amortization policies or rates adopted by US GAAPit; (iiii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend dividends or other distribution (whether in cash, stock or property) in respect of the Capital Stock of the Issuer, (ii) any direct or indirect redemption, purchase, retirement or other acquisition by the Issuer of any Capital Stock of the Issuer or any securities convertible into, exchangeable for or conferring the right to purchase Capital Stock of the Issuer (or any agreement, arrangement or other understanding to do the same), or (iii) any issuance, pledge or sale of any Capital Stock of the Issuer, or any other securities convertible into or exchangeable for or conferring the right to purchase capital stock of the Company Issuer (or any optional redemptionagreement, purchase arrangement or other acquisition understanding to do the same); (4) any amendment, alteration or modification in the terms of any currently outstanding options, warrants or other rights to purchase any Capital Stock or equity interest in the Issuer or any other securities convertible into or exchangeable for such Capital Stock or equity interest, including without limitation a reduction in the exercise or conversion price of its any such rights or securities; (vii) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in the benefits under, or establishment of the establishment, termination, modification or amendment of, or any commitment to establish, terminate, modify or amend, any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, awards or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive (x) directors or officers of the Obligors or key (y) other employees of the Company Obligors, or (ii) any Company Subsidiaryemployment, except consulting or indemnification agreement, contract or arrangement (other than the hiring or dismissal of consultants or at will employees in the ordinary course of business consistent with past practicespractice); (vii6) amendment of any term of any outstanding security of the Company termination or failure to renew, or any Company Subsidiarythreat (that was not subsequently withdrawn) to terminate or fail to renew, any Material Contract; (viii7) damageany merger with or into or consolidation with any other person, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiarysubdivision, combination or, in any way, reclassification of any shares of Capital Stock of the Issuer or any modification or amendment, or agreement to modify or amend, in any manner the rights to the Issuer’s outstanding capital stock or the character of its business; (ix8) any material change to any of the business, operations or policies of the Obligors, including, without limitation, advertising, investment, marketing, pricing, purchasing, production, personnel, sales, returns, budget or other product acquisition policies; (9) incurrenceany loan or advance by any Obligor to any of its stockholders, assumption officers, directors, consultants or guarantee by the Company employees or any Company Subsidiary of any Indebtedness other than representatives (except for travel and entertainment and moving expense advances made to employees in the ordinary course of business and consistent with past practicespractice in amount and kind); (x10) making except for inventory, equipment or Intellectual Property in the ordinary course of business, any sale, abandonment, transfer, lease, license or any other disposition of any loan, advance properties or assets of any Obligor or acquisition of any capital contribution to stock or investment in business of any Person by the Company other person (or any Company Subsidiary reaching of an agreement, arrangement or understanding to do the same); (i) any incurrence of Indebtedness or assumption, guarantee or other responsibility for the debts of any other Person (other than check-clearing endorsements made in the ordinary course of business), (Aii) any loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or other Person (B) loans or other than advances against commissions and advances of expenses to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements sales personnel in the ordinary normal course of business consistent with past practices and those contemplated by this Agreement; (xii) amendmentbusiness), alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since December 31, 2021, there has been no change or development or combination of changes or developments which, individually or in the date aggregate, has had or is reasonably likely to have a Material Adverse Effect on Salisbury. (b) Except as set forth in Salisbury Disclosure Schedule 3.10(b), since December 31, 2021, each of the Company Balance Sheet, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet Salisbury and prior to the date hereof, the Company its Subsidiaries has conducted carried on its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary usual course of business consistent with its past practices;practices (except for actions in connection with the transactions contemplated by this Agreement). (vc) except Except as set forth in Section 3.07(v) Salisbury Disclosure Schedule 3.10(c), since December 31, 2021, none of the Disclosure Schedule, declaration, setting aside Salisbury or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; Subsidiaries has (vii) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; practice (vii) amendment of any term of any outstanding security of A), increased the Company or any Company Subsidiary; (viii) damagewages, destruction salaries, compensation, pension, or other casualty loss with respect fringe benefits or perquisites payable to any material asset current or property ownedformer employee, leased director or otherwise used by other individual service provider from the Company or any Company Subsidiary; amount thereof in effect as of December 31, 2021, (ixB) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than except as disclosed in the ordinary course of business and consistent with past practices; (x) making of Salisbury SEC Documents, granted any loanseverance, advance termination pay, bonus, retention bonus, or capital contribution change in control benefits, entered into any contract to make or investment grant any severance, termination pay, bonus, retention bonus, or change in control benefits, or paid any Person by the Company bonus or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiaryretention bonus, or (BC) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements except in the ordinary course of business consistent with past practices and those contemplated by this Agreement; practice, granted any Salisbury Options, Salisbury Restricted Stock or Salisbury RSUs, (xiiii) amendmentexcept as disclosed in the Salisbury SEC Documents, alteration declared, set aside or repeal paid any dividend or other distribution (by mergerwhether in cash, consolidation stock or otherwiseproperty) with respect to any of Salisbury’s capital stock, (iii) effected or authorized any provision of the Certificate of Incorporation split, combination or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's Salisbury’s capital stock into or any issuance or issued any other securities in respect of, in lieu of or in substitution for shares that would have a preference over or on parity with of Salisbury’s capital stock, (iv) except as disclosed in the Series B Preferred Stock; (xv) sale of Salisbury SEC Documents, changed any accounting methods (or an underlying assumptions), principles or practices of Salisbury affecting its assets, liabilities or business, including without limitation, any reserving, renewal or residual method, practice or policy, (v) made any tax election by ▇▇▇▇▇▇▇▇▇ or any settlement or compromise of any income tax liability by ▇▇▇▇▇▇▇▇▇, (vi) made any material change in Salisbury’s policies and procedures in connection with underwriting standards, origination, purchase and sale procedures or hedging activities with respect to any Loans, (vii) suffered any strike, work stoppage, slow-down, or other labor disturbance, (viii) been a party to a collective bargaining agreement, contract or other agreement or understanding with a labor union or organization, (ix) had any union organizing activities or (x) made any agreement or commitment (contingent or otherwise) to sell) Core Business Assets do any of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitforegoing. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetDecember 31, 1996, except as contemplated by this Agreement, or disclosed in any Exchange Act Report the SEC Reports filed after the date of the Company Balance Sheet and publicly available prior to the date hereofof this Agreement, the Company has and its subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices and practice and, since such date, there has not been any been: (i) any changes in the financial condition, results of operations, assets, business or operations of the Company or any of its subsidiaries having or reasonably likely to have a Material Adverse Effect; ; (ii) any condition, event or occurrence which, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect; (iii) any damage, destruction or loss (whether or not covered by insurance) with respect to any assets of the Company or any of its subsidiaries which is reasonably likely, individually or in the aggregate, to have a Material Adverse Effect; (iv) any change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; practices; (iiiv) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (includingof its material assets, without limitation, any including but not limited to writing down of the value of inventory or writing-writing off of notes or accounts receivable), receivable other than in the ordinary course of business consistent with past practices; business; (vvi) except any entry by the Company or any of its subsidiaries into any commitment or transactions material to the Company and its subsidiaries taken as set forth a whole (other than commitments or transactions entered into in Section 3.07(vthe ordinary course of business); (vii) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of the Shares other than the regular quarterly dividend in the amount of $.20 per share; or (viii) any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, including without limitation, limitation the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee 18 14 benefit planplan or agreement or arrangement, or any other increase in the compensation payable or to become payable to any executive present or former directors, officers or key employees of the Company or any Company Subsidiaryof its subsidiaries, except for increases in base compensation in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiarypractice, or any mergeremployment, consolidation consulting or combination of the Company severance agreement or arrangement entered into with any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock such present or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of former directors, officers or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitkey employees. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date July 1, 2000, except as expressly contemplated by this Agreement or as disclosed pursuant to Section 3.08 of the Company Balance Sheet, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereofDisclosure Schedule, the Company has and the Company Subsidiaries have conducted its their business only in the ordinary course and in a manner consistent with past practices and practice and, since July 1, 2000, there has not been any (ia) any event or events (whether or not covered by insurance) that could reasonably be expected to have a Material Adverse Effect; Effect on the Company, (iib) any material change by the Company in its accounting methods, principles or policiespractices, except as may be required (c) any entry by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by Subsidiary into any commitment or transaction material to the Company of any asset (includingCompany, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than except in the ordinary course of business and consistent with past practices; practice, (vd) except as set forth in Section 3.07(v) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock or equity interests of the Company or the Company Subsidiaries or any optional redemption, purchase or other acquisition of any of its the Company’s or the Company Subsidiaries’ securities; , (vie) except as set forth in Section 3.07(vi) of the Disclosure Scheduleany increase in, increase in amendment to or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards)option, stock purchase or other employee benefit plan, (f) any general increase in compensation, bonus, severance or termination pay or other benefits payable to the employees of the Company or the Company Subsidiaries or, except for increases in the ordinary course of business in connection with periodic reviews and in amounts consistent with past practice, any other specific increase in the compensation payable compensation, bonus or to become other benefits payable to such employees, (g) any executive officers payment by the Company or key employees any Company Subsidiary of a bonus to any employee of the Company or any Company Subsidiary, except (h) any operation of the business of the Company and the Company Subsidiaries other than in the ordinary course of business course, consistent with past practices; practice; (viii) amendment any incurrence of any term of any outstanding security of the Company indebtedness for borrowed money or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee of indebtedness for borrowed money by the Company or any Company Subsidiary (other than loans from the Company to any wholly owned Company Subsidiary or from any wholly owned Company Subsidiary to the Company or any other wholly owned Company Subsidiary), or the grant of any Indebtedness lien on the assets of the Company or the Company Subsidiaries to secure indebtedness for borrowed money, (j) any sale or transfer of any assets of the Company or the Company Subsidiaries other than in the ordinary course of business and consistent with past practices; practice, or (xk) making of any loan, advance or capital contribution to or investment in any Person person in an aggregate amount in excess of $100,000 by the Company or any Company Subsidiary other than (A) loansexcluding any loan, advances advance or capital contributions to contribution to, or investments in investment in, the Company or any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit). (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetDecember 31, 1996, except as contemplated by this Agreement, or disclosed in any Exchange Act Report the SEC Reports filed after the date of the Company Balance Sheet and publicly available prior to the date hereofof this Agreement, the Company has and its subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices and practice and, since such date, there has not been any been: (i) any changes in the financial condition, results of operations, assets, business or operations of the Company or any of its subsidiaries having or reasonably likely to have a Material Adverse Effect; ; (ii) any condition, event or occurrence which, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect; (iii) any damage, destruction or loss (whether or not covered by insurance) with respect to any assets of the Company or any of its subsidiaries which is reasonably likely, individually or in the aggregate, to have a Material Adverse Effect; (iv) any change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; practices; (iiiv) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (includingof its material assets, without limitation, any including but not limited to writing down of the value of inventory or writing-writing off of notes or accounts receivable), receivable other than in the ordinary course of business consistent with past practices; business; (vvi) except any entry by the Company or any of its subsidiaries into any commitment or transactions material to the Company and its subsidiaries taken as set forth a whole (other than commitments or transactions entered into in Section 3.07(vthe ordinary course of business); (vii) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend dividends or distribution distributions in respect of the Shares other than the regular quarterly dividend in the amount of $.20 per share; or (viii) any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, including without limitation, limitation the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit planplan or agreement or arrangement, or any other increase in the compensation payable or to become payable to any executive present or former directors, officers or key employees of the Company or any Company Subsidiaryof its subsidiaries, except for increases in base compensation in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiarypractice, or any mergeremployment, consolidation consulting or combination of the Company severance agreement or arrangement entered into with any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock such present or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of former directors, officers or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitkey employees. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetJune 27, 2010, except as contemplated by this Agreement, Agreement or disclosed in any Exchange Act Report filed after Section 2.9 of the date Parent Disclosure Letter, each of the Company Balance Sheet and prior to the date hereof, the Company Subsidiaries has conducted its business only in the ordinary course and in a manner consistent with past practices practice and there has not been any (i) any event, circumstance, change, occurrence or state of facts that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; . Since June 27, 2010, except as contemplated by this Agreement or disclosed in Section 2.9 of the Parent Disclosure Letter, there has not been (iiu) any change by the Company in any of its Tax methods or elections or in any of its accounting methods, principles or policiespractices materially affecting the consolidated assets, except as may be required by US GAAP; (iii) change in the capital stock liabilities or results of operations of the Company and its consolidated Company Subsidiaries, except insofar as may have been required by a change in GAAP, applicable Law or any Company Subsidiary; (iv) revaluation by the Company of any asset (includingregulatory guidelines, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition for value of any of its securities; the Company’s capital stock, (viw) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of by the Company or any of the Company SubsidiarySubsidiaries of any increase in compensation or fringe benefits to any employee, officer or director (except for increases in the ordinary course of business consistent with past practice), or any payment by the Company or any of the Company Subsidiaries of any bonus (except for bonuses made in the ordinary course of business consistent with past practice), or any entry by the Company or any of the Company Subsidiaries into any contract (or amendment of an existing contract) to grant or provide severance, acceleration of vesting, termination pay or other similar benefits (except in the ordinary course of business consistent with past practices; practice), (viix) amendment any revaluation by the Company or any of the Company Subsidiaries of any term of their respective assets, including writing off notes or accounts receivable or any outstanding security sale of assets of the Company or any of the Company Subsidiary; Subsidiaries, in excess of $75,000 in the aggregate, (viiiy) damageany sale, destruction transfer or other casualty loss with respect to disposition outside of the ordinary course of business of any material asset property or property ownedmaterial assets (whether real, leased personal or otherwise used mixed, tangible or intangible) by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by of the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company SubsidiarySubsidiaries, or (Bz) loans any commitment or advances agreement with respect to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements items described in the ordinary course of business consistent with past practices and those contemplated by this Agreement; preceding clauses (xiiu) amendment, alteration or repeal through (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permity). (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since Except as set forth on SCHEDULE 3.9, since the date of the Company Balance Sheet, except as contemplated by this Agreement, or disclosed most recent ------------ financial statements included in any Exchange Act Report filed after the date of the Company Balance Sheet and SEC Documents that have been publicly available prior to the date hereof, the Company has and its Subsidiaries (only from the date such Subsidiary was acquired by the Company) have conducted its business their respective businesses only in the ordinary course and in a manner consistent with past practices prior practice, and there has not been any (ia) Material Adverse Effect; any material adverse change, (iib) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any of the Company's capital stock, (c) any split, combination or reclassification of any of the capital stock of the Company or any optional redemption, purchase issuance or other acquisition the authorization of any issuance of its securities; (vi) except as set forth any other securities in Section 3.07(vi) respect of, in lieu of or in substitution for shares of capital stock of the Disclosure ScheduleCompany, increase in or establishment of (d) any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness indebtedness for borrowed money, other than in the ordinary course of business and in amounts and on terms consistent with past practices;; (e) (xi) making of any loan, advance or capital contribution to or investment in any Person granting by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to officer of the Company by of any Company Subsidiary; material increase in compensation, (xiii) (A) transactions, commitments, contracts or agreements entered into any granting by the Company or any Company Subsidiary relating to any material disposition officer, director or acquisition consultant or an employee who earned more than $200,000 in the most recent fiscal year or is currently earning (on an annualized basis) more than $200,000 (in salary, bonus and other cash compensation), of any assets material increase in severance or business termination pay or (Biii) modification, amendment, assignment, termination or relinquishment any entry by the Company or any Company Subsidiary of into any contractwritten or oral employment agreement, License or other rightany severance or termination agreement or arrangement with any officer, other than, in either case, transactions, commitments, contracts director or agreements consultant or an employee who earned more than $200,000 in the ordinary course of business consistent with past most recent fiscal year or is currently earning (on an annualized basis) more than $200,000 (in salary, bonus and other cash compensation), (f) any damage, destruction or loss to property, whether or not covered by insurance, that, individually or in the aggregate, has not been cured and may be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect, (g) any material change in accounting methods, principles or practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company SubsidiarySubsidiary other than those required by GAAP, (h) any delivery of a notice of non-renewal or any merger, consolidation or combination of other failure to renew Contracts between the Company or any Company Subsidiary with another entity; (xvi) increase Subsidiary, on the one hand, and its customers, on the other hand, which are material, individually or in the authorized number aggregate or (i) any loss of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase any employee who earned more than $200,000 in the authorized number of shares of or issuance of any additional Series A Preferred Stock; most recent fiscal year (xviii) initiation of a voluntary liquidationin salary, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitbonus and other cash compensation). (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance Sheet, except Except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereofFFN Financial Statements or in Schedule 5.1(l), the Company (i) since December 31, 2009, each Obligor has conducted its business only in the ordinary course and in a manner substantially consistent with past practices practice and (ii) since December 31, 2009, there has not been anybeen: (i1) Material Adverse Effectany material damage, destruction or loss (not covered by insurance) with respect to any material asset of any Obligor; (ii2) any change by the Company any Obligor in its accounting methods, principles or policiespractices, except as may be required or any changes in depreciation or amortization policies or rates adopted by US GAAPit; (iiii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend dividends or other distribution (whether in cash, stock or property) in respect of the Capital Stock of the Obligors, (ii) any direct or indirect redemption, purchase, retirement or other acquisition by the Obligors of any Capital Stock of the Obligors or any securities convertible into, exchangeable for or conferring the right to purchase Capital Stock of the Obligors (or any agreement, arrangement or other understanding to do the same), or (iii) any issuance, pledge or sale of any Capital Stock of the Obligors or any other securities convertible into or exchangeable for or conferring the right to purchase capital stock of the Company Obligors (or any optional redemptionagreement, purchase arrangement or other acquisition understanding to do the same); (4) any amendment, alteration or modification in the terms of any currently outstanding options, warrants or other rights to purchase any Capital Stock or equity interest in the Obligors or any other securities convertible into or exchangeable for such Capital Stock or equity interest, including without limitation a reduction in the exercise or conversion price of its any such rights or securities; (vi5) except as set forth in Section 3.07(vi(i) of the Disclosure Schedule, any increase in the benefits under, or establishment of the establishment, termination, modification or amendment of, or any commitment to establish, terminate, modify or amend, any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, awards or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors or executive officers or key employees of the Company Obligors, or (ii) any employment, consulting or indemnification agreement, contract or arrangement with any director or executive officer; (6) any termination or failure to renew, or any Company Subsidiarythreat (that was not subsequently withdrawn) to terminate or fail to renew, any Material Contract of the Obligors; (7) any merger with or into or consolidation with any other Person, or any subdivision, combination or, in any way, reclassification of any shares of Capital Stock of the Obligors or any modification or amendment, or agreement to modify or amend, in any manner the rights to the Obligors’ outstanding capital stock or the character of its business; (8) any change to any of the business, operations or policies of the Obligors, including, without limitation, advertising, investment, marketing, pricing, purchasing, production, personnel, sales, returns, budget or other product acquisition policies that would reasonably be expected to cause a Material Adverse Effect; (9) any loan or advance by any Obligor to any of its stockholders, officers, directors, consultants or employees or other representatives (except for travel and entertainment and moving expense advances made to employees in the ordinary course of business consistent with past practicespractice in amount and kind); (vii10) amendment of any term of any outstanding security of the Company except for inventory, equipment or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than Intellectual Property in the ordinary course of business, any sale, abandonment, transfer, lease, license or any other disposition of any properties or assets of any Obligor or acquisition of any capital stock or business and consistent with past practicesof any other Person (or any reaching of an agreement, arrangement or understanding to do the same); (xi) making except as provided in certain commitment letters entered into with regard to the Recapitalization, any incurrence of Indebtedness or assumption, guarantee or other responsibility for the debts of any loan, advance or capital contribution to or investment in any other Person by the Company or any Company Subsidiary (other than check-clearing endorsements made in the ordinary course of business), (Aii) any loans, advances or capital contributions to or investments in any wholly owned Company Subsidiaryother Person (other than advances against commissions and advances of expenses to sales personnel in the normal course of business), or (Biii) loans any grant of any security interest or advances to creation or modification of any Liens on any of its properties or assets, other than Permitted Liens by the Company by any Company SubsidiaryObligors; (xi12) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary except for amendments and waivers relating to FFN’s and INI’s existing indebtedness documentation, any material disposition or acquisition of any assets or business or (B) modification, amendment, termination, transfer or waiver of any material right under any contract or other agreement of the type required to be set forth on any schedule hereto, or any agreement, arrangement or other understanding to do any of the foregoing, or any permitted lapse of any rights to the use of any Intellectual Property or any sale, assignment, termination license, transfer or relinquishment by the Company or any Company Subsidiary other disposition of any contract, License or other right, other thanrights thereto, in either case, transactions, commitments, contracts or agreements each case except in the ordinary course of business consistent with past practices and those contemplated practice by this Agreementthe Obligors; (xii13) amendment, alteration any payment by any Obligor of bonuses or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company severance pay or any Company Subsidiary, or any merger, consolidation or combination other obligation arising as a result of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number termination of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Companyemployment; or (xx14) any amendment agreement, arrangement or other understanding by any Obligor to a Material Contract do, cause or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate suffer any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganizationthe foregoing.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance Sheet, except Except as contemplated by this Agreement, or publicly disclosed in any Exchange Act Report Company Reports filed after the date of the Company Balance Sheet and prior to the date hereof, since December 31, 1999, no event or events have occurred that have had, either individually or in the aggregate, a material adverse effect on the business, results of operations or financial condition of the Company has conducted and its business only in the ordinary course and in subsidiaries taken as a manner consistent with past practices and there has not been any whole, other than any event or events attributable to (i) Material Adverse Effect; the execution of this Agreement and the announcement thereof, (ii) any change by the Company in its accounting methodslaw, principles rule or policiesregulation or GAAP or any interpretation thereof, except as may be required by US GAAP; or (iii) any change in the capital stock of the Company economic or any Company Subsidiary; (iv) revaluation by the Company of any asset business conditions generally (including, without limitation, changes in interest rates) or in the banking industry specifically and not disproportionately affecting the Company or its Subsidiaries. (b) Except as publicly disclosed in Company Reports filed prior to the date hereof, since December 31, 1999, the Company and its Subsidiaries have carried on their respective businesses in all material respects in the ordinary course. (c) Since December 31, 1999, neither the Company nor any writing down of its Subsidiaries has (i) except for normal increases for employees (other than directors and officers subject to the re- porting requirements of Section 16(a) of the value of inventory or writing-off of notes or accounts receivable), other than Exchange Act) made in the ordinary course of business consistent with past practices; (v) except practice or as set forth in Section 3.07(v) of required by applicable law, increased the Disclosure Schedulewages, declarationsalaries, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, fringe benefits or any other increase in the compensation payable or to become perquisites payable to any executive officers officer, employee, or key employees director from the amount thereof in effect as of the Company December 31, 1999, granted any severance or any Company Subsidiary, termination pay (except payments made in the ordinary course of business consistent with past practices; (vii) amendment of practice under a previously disclosed severance plan or policy), entered into any term of contract to make or grant any outstanding security of the Company severance or termination pay, or paid any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness bonus other than the customary year-end bonuses for fiscal 2000 and 1999 in the ordinary course of business and amounts consistent with past practices; practice, (xii) making granted any stock appreciation rights or granted any rights to acquire any shares of its capital stock to any loanexecutive officer, advance director or capital contribution to or investment in any Person by the Company or any Company Subsidiary employee other than grants to employees (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances other than directors and officers subject to the Company by any Company Subsidiary; (xireporting requirements of Section 16(a) (Aof the Exchange Act) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements made in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser practice under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company SubsidiaryStock Plans and except as permitted by Section 5.2(b)(iii), or (iii) suffered any mergerstrike, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidationwork stoppage, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable forslow-down, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitother labor disturbance. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of Except as disclosed in the Company Balance SheetReports, except as contemplated by this Agreement, Agreement or disclosed in any Exchange Act Report filed after the date as set forth on Schedule 4.1(g) of the Company Balance Sheet and prior to the date hereofDisclosure Schedules, since September 30, 2005, the Company has conducted its business only businesses in the ordinary course and in a manner consistent with past practices practice, and there has not been any been: (i) any event that has had, or could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; ; (ii) any material change by the Company in its accounting methods, principles or policies, practices except as may be for any such change required by US reason of a concurrent change in U.S. GAAP; ; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any material asset (including, without limitation, including any writing writing-down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice; (viv) except as set forth in Section 3.07(v) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any of its securities; ; (v) any amendment of any material term of any outstanding security of the Company or any of its Subsidiaries; (vi) except as set forth in Section 3.07(viany settlement or compromise of any material litigation, action or claim; (vii) of the Disclosure Schedule, increase in any establishment or establishment material amendment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards)option, stock purchase or other employee benefit plan, plan or any other material increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiaryof its Subsidiaries, except for salary increases and benefit accruals pursuant to the Company Compensation and Benefit Plans in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; business; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of its Subsidiaries of any Indebtedness indebtedness for borrowed money other than in the ordinary course of business and in amounts and on terms consistent with past practices; practice; (ix) any creation or other incurrence by the Company or any of its Subsidiaries of any Lien on any material asset other than in the ordinary course of business consistent with past practice; (x) any making of any material loan, advance or capital contribution contributions to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly its wholly-owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements Subsidiaries in the ordinary course of business consistent with past practices and those contemplated practice; or (xi) any damage, destruction or other casualty loss (whether or not covered by this Agreement; (xiiinsurance) amendment, alteration affecting the business or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets assets of the Company or any Company Subsidiaryof its Subsidiaries that has had, or any mergercould reasonably be expected to have, consolidation individually or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of aggregate, a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company PermitAdverse Effect. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetJuly 30, 1995, except as contemplated by this Agreement, Agreement or disclosed in any Exchange Act Report SEC Document filed after the date of the Company Balance Sheet since July 30, 1995 and prior to the date hereofof this Agreement, the Company has and its Subsidiaries have conducted its business their respective businesses only in the ordinary course and in a manner consistent with past practices practice, and there has not been any (i) any damage, destruction or loss, whether covered by insurance or not, having or which, insofar as reasonably can be foreseen, in the future would have a Material Adverse Effect; , (ii) any declaration, setting aside or payment of any dividend (whether in cash, stock or property) with respect to Common Stock, or any redemption, purchase or other acquisition of any of its securities, (iii) any change in the business, operations, properties, financial condition, assets or liabilities (including, without limitation, contingent liabilities) of the Company or any Subsidiary having a Material Adverse Effect, (iv) any labor dispute, other than routine matters, none of which is material to the Company and its Subsidiaries taken as a whole, (v) any entry into any material commitment or transaction (including, without limitation, any borrowing or capital expenditure) other than in the ordinary course of business consistent with past practice, (vi) any material change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiivii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, or (vviii) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetExcept as set forth in Schedule 5.15, except as contemplated by this Agreementsince March 31, 1997, Seller has not suffered any adverse change or loss or termination of, or disclosed breach or default of any Contract, and there has been no adverse change Threatened or anticipated in the results of operations or business or assets of Seller or in any Exchange Act Report filed after of its properties, and Seller knows of no event, in each case, which has had, or which might be expected to have, a material adverse effect on the date results of the Company Balance Sheet and prior to the date hereofoperations, the Company businesses or properties of Seller. Since March 31, 1997, Seller has conducted its business only in the ordinary course and in a manner consistent with past practices and Ordinary Course of Business. Without limiting the generality of the foregoing, except as set forth on Schedule 5.15, there has not not, since March 31, 1997, been any: (a) change in Seller's authorized or granted partnership interests; grant of any option or right to purchase any partnership interest in Seller; issuance of any security convertible into any such interest; grant of any registration rights; purchase, redemption, retirement, or other acquisition by Seller of any such interest; or declaration or payment of any dividend or other distribution or payment in respect of such interest; (b) amendment to the articles of limited partnership or partnership agreement of Seller; (c) entry by Seller into any employment, severance or similar contract with any director, officer or (except in the Ordinary Course of Business) employee or payment by Seller to or increase by Seller of any bonuses, salaries, or other compensation with respect to any partner, director, officer or (except in the Ordinary Course of Business) employee of Seller ; (d) except as required by Section 8.6, adoption of, increase in the contributions or other payments to or benefits under (including, without limitation, accelerated payment or vesting of benefits), making of any new grants or awards under, or the establishment, amendment or termination of, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, Seller Plan or other Employee Benefit Plan; (e) damage, destruction or loss (not covered by insurance) with respect to any assets of Seller involving cost or loss (not covered by insurance) in excess of $25,000 in the aggregate; (f) entry into, termination of, or receipt of notice of termination of (i) any license, distributorship, dealer, sales representative, joint venture, credit or similar agreement, or (ii) any Contract or transaction involving a total remaining commitment by or to Seller of at least $25,000; (g) sale (other than sales of inventory in the Ordinary Course of Business), lease, or other disposition of any asset or property of Seller or mortgage, pledge, or imposition of any lien or other encumbrance on any material asset or property of Seller, including the sale, lease, or other disposition of any of the Intellectual Property of Seller; (h) cancellation, waiver or compromise of any claims or rights with a value to Seller in excess of $25,000; (i) Material Adverse Effect; (ii) change by the Company Seller in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xxj) any amendment agreement, whether oral or written, by Seller to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate do any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganizationthe foregoing.

Absence of Certain Changes or Events. Except in connection with this Agreement and the transactions contemplated herein, since June 30, 2008, there has not been: (a) Since the date of the Company Balance SheetAny event, except as contemplated by this Agreement, change or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof, the Company has conducted its business only effect that individually or in the ordinary course and in aggregate has had or would reasonably be expected to have a manner consistent with past practices and there has not been any (i) Company Material Adverse Effect; (iib) change by the Company in its accounting methods, principles Any direct or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, indirect declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock, property or any combination thereof) in respect of the Company Common Stock, or any capital direct or indirect repurchase, redemption or other acquisition by the Company of any shares of its stock (other than (i) pursuant to the Company’s previously announced stock repurchase program and (ii) the acceptance of shares of Company Common Stock in payment of the exercise price or withholding Taxes incurred by any holder in connection with the exercise of Company Options or the lapse of restrictions on Company Restricted Stock or the vesting of Company Restricted Stock Units); (c) Any (i) granting by the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) Subsidiaries to any director or executive officer of the Disclosure Schedule, Company of (A) any increase in or establishment of any compensation, bonus, insurance, severancepension or other benefits, deferred compensation(B) any increase in severance or termination pay or (C) any special bonus or remuneration, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awardsii) written employment contract executed or amended, or restricted stock awards)(iii) change in personnel policies, stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, each case except in the ordinary course of business consistent with past practicespractice, as required by any employment, severance or termination agreement in effect as of the date hereof or as otherwise contemplated by this Agreement or as disclosed in Section 3.14(d) of the Company Disclosure Letter; (viid) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used Any change by the Company or in accounting principles, except for any Company Subsidiary;change resulting from a change in GAAP; or (ixe) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the Any amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets Bylaws of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or charter documents of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since Except as disclosed in the Company Reports filed prior to the date of the hereof or in Company Balance SheetDisclosure Schedule 3.10, except or as otherwise expressly permitted or expressly contemplated by this Agreement, or disclosed in any Exchange Act Report filed after since March 31, 2011 (the date of the “Company Balance Sheet and prior to the date hereofDate”), the Company has conducted its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) any change or development in the business, operations, assets, liabilities, condition (financial or otherwise), results of operations, cash flows or properties of Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; Effect with respect to Company, and to the Knowledge of Company, no fact or condition exists which is reasonably likely to cause a Material Adverse Effect with respect to Company in the future, (ii) any change by the Company or any of its Subsidiaries in its accounting methods, principles or policiespractices, except as may be other than changes required by US GAAP; applicable law or GAAP or regulatory accounting as concurred in by Company’s independent accountants, (iii) change in the capital stock of the any entry by Company or any Company Subsidiary; of its Subsidiaries into any contract or commitment of (ivA) revaluation by the Company more than $100,000 or (B) $50,000 per annum with a term of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable)more than one year, other than loans and loan commitments in the ordinary course of business consistent with past practices; business, (viv) except as set forth in Section 3.07(v) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional of its Subsidiaries or any redemption, purchase or other acquisition of any of its securities; , other than in the ordinary course of business consistent with past practice, (viv) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive directors, officers or key employees of the Company or any Company Subsidiary, except of its Subsidiaries (other than normal salary adjustments to employees made in the ordinary course of business consistent with past practices; (vii) amendment ), or any grant of severance or termination pay, or any contract or arrangement entered into to make or grant any severance or termination pay, any payment of any term bonus, or the taking of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than action not in the ordinary course of business and consistent with past practices; (x) making respect to the compensation or employment of any loandirectors, advance officers or capital contribution to or investment in any Person by the employees of Company or any Company Subsidiary other than of its Subsidiaries, (Avi) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company material election made by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to of its Subsidiaries for federal or state income tax purposes, (vii) any material change in the credit policies or procedures of Company or any of its Subsidiaries, the effect of which was or is to make any such policy or procedure less restrictive in any respect, (viii) any material acquisition or disposition or acquisition of any assets or business properties, or any contract for any such acquisition or disposition entered into other than loans and loan commitments, or (Bix) modification, amendment, assignment, termination any material lease of real or relinquishment by the Company or any Company Subsidiary of any contract, License or other rightpersonal property entered into, other than, than in either case, transactions, commitments, contracts connection with foreclosed property or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date Except as may be set forth in Section 4.9(a) of the Company Balance Sheet, except as contemplated by this AgreementDisclosure Schedule, or as disclosed in the 2007 Audited Financial Statements or the June 30 Unaudited Financial Statements (together the “Financial Statements”) or any Exchange Act Company Report (as defined in Section 4.5) filed after with the date of the Company Balance Sheet and SEC prior to the date hereofof this Agreement, since December 31, 2007, neither the Company has conducted its business only nor any Subsidiary of the Company, as applicable, had any liabilities, obligations or loss contingencies of any nature (whether absolute, accrued, contingent or otherwise) of a type required to be reflected in such Financial Statements or the footnotes thereto or any Company Report which are not fully reflected or reserved against therein or fully disclosed in a footnote thereto, except for liabilities, obligations and loss contingencies which are not material individually or in the aggregate or which are incurred in the ordinary course and in a manner of business, consistent with past practices practice and there subject, in the case of any unaudited statements, to normal, recurring audit adjustments and the absence of footnotes. (b) Except as may be set forth in Section 4.9(b) of the Company Disclosure Schedule or as disclosed in the Financial Statements or any Company Report filed with the SEC prior to the date of this Agreement, since December 31, 2007 the Company and its Subsidiaries have carried on their respective businesses in the ordinary course consistent with their past practices. (c) Except as may be set forth in Section 4.9(c) of the Company Disclosure Schedule, since December 31, 2007 neither the Company nor any of its Subsidiaries has not been any (i) Material Adverse Effect; with respect to any executive officer or director, increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable from the amount thereof in effect as of December 31, 2007 (ii) change by the Company other than increases in its accounting methods, principles wages or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or salaries with respect to any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivablesuch individual equaling less than 10%), other than granted any severance or termination pay, entered into any contract to make or grant any severance or termination pay, or paid any bonus (except for bonus payments and severance or termination payments made in the ordinary course of business consistent with past practices; ), (vii) except as set forth in Section 3.07(v) of the Disclosure Schedulesuffered any strike, declarationwork stoppage, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemptionslowdown, purchase or other acquisition of any of its securities; labor disturbance, (viiii) except as set forth in Section 3.07(vi) of the Disclosure Schedulebeen a party to a collective bargaining agreement, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase contract or other employee benefit plan, agreement or any other increase in the compensation payable understanding with a labor union or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiaryorganization, or (Biv) loans or advances to the Company by had any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitunion organizing activities. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date Except as set forth on Schedule 3.12 of the Company Balance Sheet, except as contemplated by this Agreement, Disclosure Schedule or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and SEC Documents filed or furnished prior to the date hereof, the Company has conducted its business only in the ordinary course and in a manner consistent with past practices and or as otherwise expressly permitted or expressly contemplated by this Agreement, since December 31, 2010, there has not been any (i) any change or development in the business, operations, assets, liabilities, condition (financial or otherwise), results of operations, cash flows or properties of the Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; , (ii) any change by the Company or any of its Subsidiaries in its accounting methods, principles or policiespractices, except as may be other than changes required by US GAAP; applicable law or GAAP or regulatory accounting as concurred in by the Company's independent registered public accounting firm, (iii) change in the capital stock of any entry by the Company or any Company Subsidiary; of its Subsidiaries into any contract or commitment of (ivA) revaluation by the Company more than $250,000 or (B) $100,000 per annum with a term of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable)more than one year, other than loans and loan commitments in the ordinary course of business consistent with past practices; business, (viv) except as set forth in Section 3.07(v) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional of its Subsidiaries or any redemption, purchase or other acquisition of any of its securities; , other than in the ordinary course of business consistent with past practice or with respect to shares tendered in payment for the exercise of stock options or withheld for tax purposes upon the vesting of restricted stock awards or performance share awards or upon the exercise of stock options, (viv) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in establishment or establishment amendment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any directors or executive officers of the Company or key any of its Subsidiaries, or any contract or arrangement entered into to make or grant any severance or termination pay, or the taking of any action not in the ordinary course of business with respect to the compensation or employment of directors, officers or employees of the Company or any of its Subsidiaries, (vi) any material closing agreement, settlement, election or other action made by Company Subsidiaryor any of its Subsidiaries for federal or state income tax purposes, except (vii) any material change in the credit policies or procedures of the Company or any of its Subsidiaries, the effect of which was or is to make any such policy or procedure less restrictive in any respect, (viii) any material acquisition or disposition of any assets or properties, or any contract for any such acquisition or disposition entered into, other than loans and loan commitments, or (ix) any material lease of real or personal property entered into, other than in connection with foreclosed property or in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date Except as disclosed in Section 3.08 of the Company Balance SheetDisclosure Letter, except as contemplated by this Agreementsince June 30, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to 2009 through the date hereof, the Company has conducted its and the Company Subsidiaries have conducted, in all material respects, their business only in the ordinary course and in a manner consistent with past practices practice, and since such date through the date hereof, (a) there has not been any occurred any Company Material Adverse Effect and (b) the Company and the Company Subsidiaries have not (i) Material Adverse Effect; except for borrowings under the Credit Agreement, dated as of February 9, 2009, among the Company, Bank of America N.A., and the other lenders party thereto, as amended (the “Credit Agreement”), incurred any material Indebtedness, (ii) change by increased the Company in compensation or benefits payable to or to become payable to its accounting methodsdirectors, principles officers or policiesemployees, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than for increases in the ordinary course of business consistent with past practices; (v) except as set forth practice in Section 3.07(v) salaries or wages of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, or granted any rights to severance or termination pay to, or entered into any employment or severance agreement with, any director, officer or other employee of the Company or any Company Subsidiary, or taken any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Benefit Plan, (iii) made or changed any material election in respect of Taxes, adopted or changed any material accounting method in respect of Taxes or, except in the ordinary course of business consistent with past practices; practice, settled or compromised any material claim, notice, audit report or assessment in respect of Taxes, (viiiv) amendment of made any term of any outstanding security material change, other than changes required by GAAP, with respect to accounting policies or procedures of the Company or any Company Subsidiary; , (viiiv) damage, destruction or other casualty loss with respect to pre-paid any material asset Indebtedness or property ownedpaid, leased discharged or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to satisfied any material disposition claims, liabilities or acquisition obligations (absolute, accrued, contingent or otherwise), except for such payments, discharges or satisfaction of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements claims in the ordinary course of business consistent with past practices and those contemplated practice, (vi) suffered any material damage, destruction or loss, whether or not covered by this Agreement; insurance, (xiivii) amendmentdeclared, alteration set aside or repeal paid any dividend or other distribution in respect of the Company Capital Stock (by mergerexcept for quarterly dividends of $0.025 per share of Common Stock), consolidation or otherwise) made any direct or indirect redemption, repurchase or other acquisition of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Company Capital Stock, Warrants (viii) written up, written down or Common Stock at written off the Closing book value of any material assets, or the rights a material amount of the Purchaser under this Agreementany other assets, other than in the amendment to the Certificate ordinary course of Incorporation business or except as required by filing of the Certificate of Amendment and the Amended and Restated ByGAAP or Law, (ix) wound-laws as contemplated herein; (xiii) creation of up, liquidated, or dissolved any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over business, subsidiary, or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets joint venture of the Company or any Company Subsidiary, or (x) made any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase material changes in the authorized number of shares of Common Stock Company’s disclosure controls and procedures or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitinternal control over financial reporting. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetExcept as set forth in Schedule 3.8, except as contemplated by this Agreementsince September 30, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof2022, the Company has conducted its business only the Business in the ordinary course and in a manner consistent with past practices and there has not been any occurred any of the following: (i) any Material Adverse Effect; ; (ii) any amendments or changes in the Articles of Organization or Operating Agreement of Company; (iii) any damage to, destruction or loss of any material asset of Company (whether or not covered by insurance); (iv) any material change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; practices; (iiiv) change in the capital stock of the Company or any Company Subsidiary; (iv) material revaluation by the Company of any asset (of its assets, including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), receivable other than in the ordinary course of business consistent with past practices; business; (vvi) any sale of a material amount of property of Company, except as set forth in Section 3.07(vthe ordinary course of business; (vii) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the membership interest in Company or any optional redemption, purchase or other acquisition of any of its securities; Company’s securities (vi) except as set forth in Section 3.07(vicontemplated by this Agreement); (viii) of the Disclosure Schedule, any increase in the compensation or benefits or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company SubsidiaryCompany, in each case except in the ordinary course of business consistent with past practices; practice or except as required by applicable law; (viiix) amendment any creation or assumption by Company of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to Encumbrance on any material asset or property ownedof Company, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and business, consistent with past practices; practice; (x) any making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary Company, other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating employees to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or cover travel and other right, other than, in either case, transactions, commitments, contracts or agreements ordinary business-related expenses in the ordinary course of business consistent with past practices and those contemplated practice; (xi) any incurrence or assumption by this Agreement; Company of any indebtedness for borrowed money or any guarantee, endorsement or other incurrence or assumption of a material liability (whether directly, contingently or otherwise) by Company for the obligations of any other Person, in each case other than in the ordinary course of business consistent with past practice; or (xii) any material modification, amendment, alteration assignment or repeal (termination of or relinquishment by merger, consolidation or otherwise) Company of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganizationMaterial Contract.

Absence of Certain Changes or Events. (a) Since the date Except (i) as set forth in Section 3.9(a) of the Company Balance Sheet, except Disclosure Schedule or (ii) as contemplated by this Agreement, or disclosed in any Exchange Act Company Report filed after with the date of the Company Balance Sheet and SEC prior to the date hereofof this Agreement, since September 30, 2003, there has been no change or development or combination of changes or developments which, individually or in the aggregate, have had, or would reasonably be expected to have, a Material Adverse Effect on the Company. (b) Except as set forth in Section 3.9(b) of the Company Disclosure Schedule or as disclosed in any Company Report filed with the SEC prior to the date of this Agreement, since September 30, 2003, the Company has conducted and its business Subsidiaries have carried on their respective businesses in all material respects only in the ordinary course and in a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary usual course of business consistent with their past practices;. (vc) except Except as set forth in Section 3.07(v3.9(c) of the Company Disclosure ScheduleSchedule or as disclosed in any Company Report filed with the SEC prior to the date of this Agreement, declarationsince September 30, setting aside or payment of any dividend or distribution in respect of any capital stock of 2003, neither the Company or any optional redemption, purchase or other acquisition of nor any of its securities; Subsidiaries has (vii) except as set forth in Section 3.07(vi) of increased the Disclosure Schedulewages, increase in or establishment of any bonussalaries, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, fringe benefits or any other increase in the compensation payable or to become perquisites payable to any executive officers officer or key employees director from the amount thereof in effect as of the Company September 30, 2003 (which amounts have been previously disclosed to Parent), granted any severance or termination pay, entered into any Company Subsidiarycontract to make or grant any severance or termination pay, except in the ordinary course of business consistent with past practices; or paid any bonus, (viiii) amendment of declared, set aside or paid any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction dividend or other casualty loss distribution (whether in cash, stock or property) with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; 's capital stock, (xiviii) effected or authorized any issuance, split, combination or reclassification of any of the Company's capital stock into or issued any other securities in respect of, in lieu of or in substitution for shares that would have a preference over or on parity of the Company's capital stock, except for issuances of Company Common Stock upon the exercise of Company Options awarded prior to the date hereof in accordance with the Series B Preferred Stock; their terms, (xviv) sale of changed any accounting methods (or underlying assumptions), principles or practices of the Company or its Subsidiaries affecting its assets, liabilities or businesses, including any reserving, renewal or residual method, practice or policy, (v) made any Tax election or changed any Tax election, amended any Tax Returns or entered into any settlement or compromise of any income tax liability of the Company or its Subsidiaries or entered into any closing agreement with respect to Taxes, (vi) created, incurred, assumed, or suffered to exist any indebtedness or issued debt securities or assumed, guaranteed, endorsed or otherwise as an agreement accommodation became responsible for the obligations of any Person; (vii) granted any equity compensation to sell) Core Business Assets any officer, director, employee or consultant of the Company or any Company Subsidiaryof its Subsidiaries, or (viii) made any merger, consolidation agreement or combination commitment (contingent or otherwise) to do any of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitforegoing. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since Except as disclosed in the Company Reports filed prior to the date of the hereof or in Company Balance SheetDisclosure Schedule 3.10, except or as otherwise expressly permitted or expressly contemplated by this Agreement, or disclosed in any Exchange Act Report filed after since September 30, 2013 (the date of the “Company Balance Sheet and prior to the date hereofDate”), the Company has conducted its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) any change or development in the business, operations, assets, liabilities, condition (financial or otherwise), results of operations, cash flows or properties of Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; Effect with respect to Company, and to the Knowledge of Company, no fact or condition exists which is reasonably likely to cause a Material Adverse Effect with respect to Company in the future, (ii) any change by the Company or any of its Subsidiaries in its accounting methods, principles or policiespractices, except as may be other than changes required by US GAAP; applicable law or GAAP or regulatory accounting as concurred in by Company’s independent accountants, (iii) change in the capital stock of the any entry by Company or any Company Subsidiary; of its Subsidiaries into any contract or commitment of (ivA) revaluation by the Company more than $100,000 or (B) $50,000 per annum with a term of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable)more than one year, other than loans and loan commitments in the ordinary course of business consistent with past practices; business, (viv) except as set forth in Section 3.07(v) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional of its Subsidiaries or any redemption, purchase or other acquisition of any of its securities; , other than in the ordinary course of business consistent with past practice, (viv) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive directors, officers or key employees of the Company or any Company Subsidiaryof its Subsidiaries, except or any grant of severance or termination pay, or any contract or arrangement entered into to make or grant any severance or termination pay, any payment of any bonus, or the taking of any action not in the ordinary course of business consistent with past practices; respect to the compensation or employment of directors, officers or employees of Company or any of its Subsidiaries, (vi) any material election made by Company or any of its Subsidiaries for federal or state income tax purposes, (vii) amendment any material change in the credit policies or procedures of any term of any outstanding security of the Company or any Company Subsidiary; of its Subsidiaries, the effect of which was or is to make any such policy or procedure less restrictive, (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than loans and loan commitments and investment securities in the ordinary course of business and consistent with past practices; (x) making of any loanpractice, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material acquisition or disposition or acquisition of any assets or business properties, or any contract for any such acquisition or disposition entered into, or (Bix) modification, amendment, assignment, termination any material lease of real or relinquishment by the Company or any Company Subsidiary of any contract, License or other rightpersonal property entered into, other than, than in either case, transactions, commitments, contracts connection with foreclosed property or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since Except as disclosed in the Company Reports filed prior to the date of the hereof or in Company Balance SheetDisclosure Schedule 3.10, except or as otherwise expressly permitted or expressly contemplated by this Agreement, or disclosed in any Exchange Act Report filed after since March 31, 2012 (the date of the “Company Balance Sheet and prior to the date hereofDate”), the Company has conducted its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) any change or development in the business, operations, assets, liabilities, condition (financial or otherwise), results of operations, cash flows or properties of Company or any of its Subsidiaries which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; Effect with respect to Company, and to the Knowledge of Company, no fact or condition exists which is reasonably likely to cause a Material Adverse Effect with respect to Company in the future, (ii) any change by the Company or any of its Subsidiaries in its accounting methods, principles or policiespractices, except as may be other than changes required by US GAAP; applicable law or GAAP or regulatory accounting as concurred in by Company’s independent accountants, (iii) change in the capital stock of the any entry by Company or any Company Subsidiary; of its Subsidiaries into any contract or commitment of (ivA) revaluation by the Company more than $100,000 or (B) $50,000 per annum with a term of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable)more than one year, other than loans and loan commitments in the ordinary course of business consistent with past practices; business, (viv) except as set forth in Section 3.07(v) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional of its Subsidiaries or any redemption, purchase or other acquisition of any of its securities; , other than in the ordinary course of business consistent with past practice, (viv) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive directors, officers or key employees of the Company or any of its Subsidiaries, or any grant of severance or termination pay, or any contract or arrangement entered into to make or grant any severance or termination pay, any payment of any bonus, or the taking of any action not in the ordinary course of business with respect to the compensation or employment of directors, officers or employees of Company Subsidiaryor any of its Subsidiaries, except (vi) any material election made by Company or any of its Subsidiaries for federal or state income tax purposes, (vii) any material change in the credit policies or procedures of Company or any of its Subsidiaries, the effect of which was or is to make any such policy or procedure less restrictive in any material respect, (viii) other than loans and loan commitments, any material acquisition or disposition of any assets or properties, or any contract for any such acquisition or disposition entered into, or (ix) any material lease of real or personal property entered into, other than in connection with foreclosed property or in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetSeptember 30, 2002, except as contemplated by this Agreement, Agreement or disclosed in any Exchange Act SEC Report filed after the date of the Company Balance Sheet since September 30, 2002 and prior to the date hereofof this Agreement, the Company has and its Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices and practice and, since September 30, 2002, there has not been any (ia) any change in the business, operations, properties, condition (financial or otherwise), assets or liabilities (including, without limitation, contingent liabilities) or prospects of the Company or its Subsidiaries having individually or in the aggregate, a Company Material Adverse Effect; , (iib) any damage, destruction or loss (whether or not covered by insurance) with respect to any property or asset of the Company or its Subsidiaries and having individually or in the aggregate, a Company Material Adverse Effect, (c) any change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiid) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, (ve) except as set forth in Section 3.07(v) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; , (vif) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiaryits Subsidiaries, except in the ordinary course of business consistent with past practices; practice, (viig) any new or change to a material election in respect of Taxes, any amendment of a Tax Return, any term adoption or change to an accounting method in respect of Taxes, any entering into a Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, settlement or compromise of any outstanding security claim or assessment in respect of Taxes, or any consent to any extension or waiver of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect limitation period applicable to any material asset claim or property ownedassessment in respect of Taxes with any Governmental Authority, leased (h) any change to the Company's certificate of incorporation, (i) any settlement or otherwise used compromise by the Company of legal actions whether threatened or any Company Subsidiary; pending, (ixj) incurrence, assumption or guarantee the entry by the Company or into any Company Subsidiary of any Indebtedness material agreement other than in the ordinary course of business and consistent with past practices; business, (xk) making any issuance of any loan, advance or capital contribution to or investment in any Person by stock of the Company or any Company Subsidiary other than (A) loans, advances securities convertible or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class exchangeable for shares of capital stock of the Company; (xiv) reclassification of Company or any securities, warrants, options or rights to purchase any of the Company's foregoing (except pursuant to the exercise of options and pursuant to the Employee Stock Purchase Plan), (l) any capital stock into shares that would have a preference over expenditures by the Company in excess of $250,000 in the aggregate, (m) the pledge or on parity with the Series B Preferred Stock; (xv) sale encumbrance of (or an agreement any asset material to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of (n) the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving loan by the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. Except (ai) Since the date of the Company Balance Sheet, except as contemplated by expressly permitted or otherwise provided in this Agreement, or disclosed (ii) as set forth in any Exchange Act Report the SEC Reports filed after the date of the Company Balance Sheet and prior to the date hereofof this Agreement, (iii) as set forth in the Interim Financial Statements, or (iv) as set forth in Schedule 4.6 hereto, since December 31, 1998, the business of the Company and the Subsidiaries has been conducted its business only in the ordinary course and in a manner consistent with past practices practice and there has not been anybeen: (ia) any Material Adverse Effect; (iib) any damage, destruction or loss (whether or not covered by insurance) with respect to any of the assets of the Company, any of its Subsidiaries or any Managed Provider having a Material Adverse Effect; (c) any redemption or other acquisition of Company Common Stock by the Company or any of the Subsidiaries or any declaration or payment of any dividend or other distribution in cash, stock or property with respect to Company Common Stock, except for purchases heretofore made pursuant to the terms of the Company's employee benefit plans; (d) any change by the Company in its accounting methods, principles or policies, except as may be required by US GAAPpractices; (iiie) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practicespractice; (vf) except as set forth in Section 3.07(v) any entry by the Company, any Subsidiary or, to the knowledge of the Disclosure ScheduleCompany, declaration, setting aside any Managed Provider into any commitment or payment of any dividend or distribution in respect of any capital stock of transaction material to the Company and the Subsidiaries taken as a whole, other than commitments or any optional redemption, purchase or other acquisition transactions entered into in the ordinary course of any of its securitiesbusiness consistent with past practice; (vig) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, awards or restricted stock awards), ) stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive directors, officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practicespractice; (viih) amendment of any term of entry by the Company or any outstanding security Subsidiary into any employment, consulting, severance, termination or indemnification agreement with any director, officer or key employee of the Company or any Company SubsidiarySubsidiary or any entry into any such agreement with any other person; (viiii) damageany settlement or compromise by the Company, destruction any Subsidiary or, to the knowledge of the Company, any Managed Provider of any claim, litigation or other casualty loss legal proceeding, other than in the ordinary course of business consistent with respect to past practice in an amount not involving more than $100,000 or (ii) any material asset payment, discharge or property owned, leased or otherwise used satisfaction by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than (A) in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, practice or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating with respect to any material disposition other such claims, liabilities or acquisition of any assets obligations reflected or business reserved against in, or contemplated by, the consolidated financial statements (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiiinotes thereto) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xxj) any amendment to a Material Contract agreement, in writing or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditorsotherwise, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate take any of them a bankrupt the actions described in this Section 4.6 or, to the knowledge of the Company, by any Managed Provider to take any of the actions described in Sections 4.6(b), (f) or insolvent(i), or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganizationexcept as expressly contemplated by this Agreement.

Absence of Certain Changes or Events. (a) Since December 31, 2013, there has been no change or development or combination of changes or developments which, individually or in the date of the Company Balance Sheetaggregate, except as contemplated by this Agreementhas had or is reasonably likely to have a Material Adverse Effect on QBT. (b) Since December 31, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof2013, the Company QBT has conducted carried on its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary usual course of business consistent with its past practices;practices (except for the incurrence of expenses in connection with this Agreement). (vc) except Except as set forth in Section 3.07(vQBT Disclosure Schedule 3.09, since December 31, 2013, QBT has not (i) of increased the Disclosure Schedulewages, declarationsalaries, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, fringe benefits or any other increase in the compensation payable or to become perquisites payable to any executive officers officer, employee or key employees director from the amount thereof in effect as of the Company December 31, 2013, granted any severance or termination pay, entered into any Company Subsidiarycontract to make or grant any severance or termination pay, except in the ordinary course of business consistent with past practices; or paid any bonus, (viiii) amendment of declared, set aside or paid any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction dividend or other casualty loss distribution (whether in cash, stock or property) with respect to any material asset of QBT’s capital stock, (iii) effected or property ownedauthorized any split, leased combination or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's QBT’s capital stock into or any issuance or issued any other securities in respect of, in lieu of or in substitution for shares that would have a preference over or on parity with the Series B Preferred Stock; of QBT’s capital stock, (xviv) sale of changed any accounting methods (or an underlying assumptions), principles or practices of QBT affecting its assets, liabilities or business, including without limitation, any reserving, renewal or residual method, practice or policy, (v) made any tax election by QBT or any settlement or compromise of any income tax liability by QBT, (vi) made any material change in QBT’s policies and procedures in connection with underwriting standards, origination, purchase and sale procedures or hedging activities with respect to any Loans, (vii) suffered any strike, work stoppage, slow-down, or other labor disturbance, (viii) been a party to a collective bargaining agreement, contract or other agreement or understanding with a labor union or organization, (ix) had any union organizing activities or (x) made any agreement or commitment (contingent or otherwise) to sell) Core Business Assets do any of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitforegoing. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetFrom December 31, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior 1998 to the date hereof, except as contemplated or permitted by this Agreement or as disclosed in any SEC Report filed since December 31, 1998 and prior to the execution and delivery of this Agreement or in the Company has Disclosure Schedule, the Company and the Company Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices practice and there has not been any (iother than as described in Section 5.7 of the Company Disclosure Schedule) Material Adverse Effect; (iia) any material change by the Company in its accounting methods, principles or policies, practices except as may be required by US GAAP; generally accepted accounting principles and disclosed in any SEC Report filed since December 31, 1998, (iiib) change in the capital stock of the Company or any Company Subsidiary; (iv) material revaluation by the Company of any material asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) practice after the date of the Disclosure Schedulemost recent SEC Report filed prior to the date hereof, (c) any entry by the Company or any Company Subsidiary into any commitment or transaction material to the Company and the Company Subsidiaries taken as a whole, except in the ordinary course of business and consistent with past practice, (d) any declaration, setting aside or payment of any dividend or distribution in respect of any shares of the Company's capital stock of the Company or any optional redemption, purchase or other acquisition of any of its the Company's securities; , (vie) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any material increase in the benefits under, or establishment of the establishment, material amendment or termination of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit planplan covering employees of the Company or any Company Subsidiary, or any other material increase in the compensation payable or to become payable to or any executive other material change in the employment terms for any directors or officers or key employees of the Company or any Company SubsidiarySubsidiary or any other employee earning noncontingent cash compensation in excess of $100,000 per year, except in (f) any entry by the ordinary course of business consistent Company or any Company Subsidiary into any employment, consulting, severance, termination or indemnification agreement with past practices; (vii) amendment of any term of any outstanding security director or officer of the Company or any Company Subsidiary; Subsidiary or entry into any such agreement with any other person for a noncontingent cash amount in excess of $100,000 per year or outside the ordinary course of business, (viiig) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee issuance by the Company or any Company Subsidiary of any Indebtedness notes, bonds or other than in debt securities or any capital stock or other equity securities or any securities convertible, exchangeable or exercisable into any capital stock or other equity securities, except for the ordinary course of business and consistent with past practices; (x) making issuance of any loanshares of Common Stock pursuant to the exercise of any stock options and the issuance of any capital stock expressly contemplated by this Agreement, advance or capital contribution to or investment in (h) any Person agreement by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments take any of the actions described in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those this Section 5.7 except as expressly contemplated by this Agreement; , or (xiii) amendmentany event, alteration change or repeal circumstance that has or is reasonably likely to have a Company Material Adverse Effect. Item (by mergeri) set forth above shall, consolidation or otherwise) of any provision as of the Certificate of Incorporation or the By-lawsEffective Time, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment also apply to the Certificate of Incorporation by filing of period beginning on the Certificate of Amendment date hereof and ending immediately prior to the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company PermitEffective Time. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetDecember 31, 2003, except as contemplated by this Agreement, Agreement or disclosed in any Exchange Act Report filed after the date as set forth on Schedule 3.09 of the Company Balance Sheet and prior to the date hereofDisclosure Schedule, the Company has and the Subsidiaries have conducted its business only their businesses in the ordinary course and in a manner consistent with past practices practice, and there has not been any (ia) any event or events having a Company Material Adverse Effect; , (iib) any change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiic) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any material asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, (vd) any entry by the Company or any Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as a whole, except as set forth in Section 3.07(vthe ordinary course of business and consistent with past practice, (e) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; , (vif) except as set forth any material damage, destruction or loss to material property, whether or not covered by insurance, (g) any settlement or compromise of any material litigation, action or claim, or (h) other than pursuant to the contracts and Plans expressly referred to in Section 3.07(vi) of the Disclosure Schedule3.11 hereof, any increase in in, establishment or establishment material amendment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except for salary increases and benefit accruals in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since From January 1, 2010 until the date of the Company Balance Sheetthis Agreement, except as contemplated by this Agreement, or disclosed in Agreement and except for any Exchange Act Report filed after the date redemption of the Company Balance Sheet and prior Convertible Notes pursuant to the date hereofIndenture, the Company has conducted its business businesses only in the ordinary course and in a manner consistent with past practices practices, and there has not been any any (ia) event that has had, individually or in the aggregate with all such other events, a Company Material Adverse Effect; , (iib) change by the Company in its accounting methods, principles or policiespractices materially affecting the consolidated assets, liabilities, results of operations or Taxes of the Company and its consolidated Company Subsidiaries, except insofar as may be have been required by US GAAP; a change in GAAP or the rules and regulations of the SEC, (iiic) change in the capital stock of the Company or any Company Subsidiary; an existing election with respect to Taxes, (ivd) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition for value of any of its securities; capital stock, (vie) except as set forth incurrence, assumption or guarantee by the Company of any indebtedness for borrowed money, other than in Section 3.07(vithe ordinary course of business and in amounts and on terms consistent with past practices not exceeding $1,000,000 in the aggregate, (f) creation or assumption by the Company or any Company Subsidiary of any material lien, encumbrance or charge on, or sale, assignment or other transfer of, any material amount of their respective tangible or intangible assets, (g) purchase or other acquisition of, or commitment for, any amount of tangible or intangible assets outside of the Disclosure Scheduleordinary course of business and for more than $750,000 in the aggregate, increase in or establishment (h) (1) grant of any bonusseverance or termination pay to any employee of the Company or any Company Subsidiary except in accordance with existing contractual arrangements or severance or termination pay policies, insurance(2) entry into, severanceor amendment of, any employment, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase severance or other employee benefit plansimilar plan or agreement with any employee, director or any other increase in the compensation payable or to become payable to any executive officers or key employees consultant of the Company or any Company Subsidiary, except (3) change in benefits payable under existing severance or termination pay policies of the Company or any Company Subsidiary or employment agreements to which any employee of the Company or any Company Subsidiary is a party, or (4) change in compensation, bonus or other benefits payable to any employee, director or consultant of the Company or any Company Subsidiary, other than in the ordinary course of business consistent with past practices; , (viii) amendment commencement or notice or threat of commencement of any term of litigation, proceeding, investigation or inquiry against, or investigation by any outstanding security of governmental authority of, the Company or any Company Subsidiary; (viii) damageSubsidiary that would reasonably be expected to have a Company Material Adverse Effect, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee settlement of any such matter by the Company or any Company Subsidiary outside of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiarycourse, or (Bj) loans dispute or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of disagreement between the Company or any Company Subsidiary, on the one hand, and any material vendor of products or any merger, consolidation or combination of services to the Company or any Company Subsidiary with another entity; (xvi) increase in Subsidiary, on the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of other hand, that would reasonably be expected to have a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company PermitAdverse Effect. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since Other than as disclosed in the Company Current Reports or in Section 4.11 of the Company Disclosure Schedule, since June 30, 1998 and through the date of this Agreement, the business of the Company Balance Sheetand of each of the Company Subsidiaries has been conducted in the ordinary course, and there has not been (i) any Material Adverse Effect on the Company; (ii) any material indebtedness incurred by the Company or any Company Subsidiary for borrowed money, except under credit facilities disclosed in the Company Current Reports, if any; (iii) any material transaction or commitment, except in the ordinary course of business or as contemplated by this Agreement, entered into by the Company or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereofSubsidiaries; (iv) any damage, the Company has conducted its business only destruction or loss, whether covered by insurance or not, which, individually or in the ordinary course and in aggregate, would have a manner consistent with past practices and there has not been any (i) Material Adverse Effect; Effect on the Company; (iiv) any change by the Company in its accounting methods, principles or policies, methods except insofar as may be required by US GAAP; (iii) a change in generally accepted accounting principles; (vi) any declaration, setting aside or payment of any dividend (whether in cash, securities or property) with respect to the capital Company Common Stock; (vii) any material agreement to acquire any assets or stock or other interests of any third-party; (viii) any increase in the compensation payable or to become payable by the Company or any Company Subsidiary; Subsidiary to any employees, officers, directors, or consultants or in any bonus, insurance, welfare, pension or other employee benefit plan, payment or arrangement made to, for or with any such employee, officer, director or consultant (ivother than as provided in employment agreements, consulting agreements and welfare and benefit plans set forth on the Company Disclosure Schedule, and except for increases consistent with past practice); (ix) any material revaluation by the Company or any Company Subsidiary of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable); (x) any transfer, mortgage, pledge or disposition of any of the assets or properties of the Company or any Company Subsidiary or the subjection of any of the assets or properties of the Company or any Company Subsidiary to any Encumbrances, rights or claims of others with respect thereto other than in the ordinary course consistent with past practice; (xi) any assumption or guarantee by the Company or a Company Subsidiary of the indebtedness of any person or entity, other than in the ordinary course of business consistent with past practices; practice; (vxii) except as set forth in Section 3.07(v) any split, combination or reclassification of any of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase Company Subsidiary or other acquisition any issuance or the authorization of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment issuance of any bonusother securities in respect of, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option in lieu of or in substitution for shares of such capital stock; (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or xiii) any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used receipt by the Company or any Company Subsidiary; Subsidiary of written or oral notice that any material contract, agreement or arrangement to which it is a party has been or will be canceled; (ixxiv) incurrence, assumption or guarantee any issuance by the Company or any Company Subsidiary of any Indebtedness share of stock, bond, note, option, warrant or other corporate security; (xv) any capital expenditure or expenditures by the Company or any Company Subsidiary or commitment(s) to make such capital expenditure(s) that individually exceeds $250,000, or in the aggregate exceed $500,000; (xvi) any payment or incurring of liability to pay any taxes, assessments, fees, penalties, interest or other governmental charges, other than those arising and discharged or to be discharged in the ordinary course of business and consistent with past practices; practice; (xxvii) making of any loanloan or loans that individually exceeds $250,000, advance or capital contribution to or investment in any Person the aggregate exceed $500,000, made by the Company or any Company Subsidiary other than (A) loansto any person, advances including but not limited to, any employee, officer or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to director of the Company by or any Company Subsidiary; ; or (xixviii) (A) transactionsany authorization, commitmentsapproval, contracts agreement or agreements entered into commitment by the Company or any Company Subsidiary relating to take any material disposition or acquisition of any assets or business or action described in clauses (Bi) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; through (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitabove. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since From June 30, 1997 to the date of the Company Balance Sheethereof, except as contemplated by this Agreement, Agreement or as disclosed in any Exchange Act SEC Report filed after the date of the Company Balance Sheet since June 30, 1997 and prior to the date hereofexecution and delivery of this Agreement or in the Company Disclosure Schedule, the Company has and the Company Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices practice and there has not been any (ia) Material Adverse Effect; (ii) any change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiib) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any material asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, (vc) any entry by the Company or any Company Subsidiary into any commitment or transaction material to the Company and the Company Subsidiaries taken as a whole, except as set forth in Section 3.07(vthe ordinary course of business and consistent with past practice, (d) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company Shares or any optional redemption, purchase or other acquisition of any of its securities; , (vie) except as set forth in Section 3.07(vi) of the Disclosure Schedulefor increases required by existing employment agreements, any increase in the benefits under, or the establishment of or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company Subsidiary or any Company Subsidiary; other employee earning in excess of $100,000 per year, (viiif) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee entry by the Company or any Company Subsidiary into any employment, consulting, severance, termination or indemnification agreement with any officer of the Company or any Indebtedness Company Subsidiary or entry into any such agreement with any other than person for an amount in excess of $100,000 per year or outside the ordinary course of business and consistent with past practices; business, (xg) making of any loan, advance Company Material Adverse Effect or capital contribution to or investment in (h) any Person agreement by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments take any of the actions described in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those this Section 3.7 except as expressly contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares for such events that would not, individually or in the aggregate, have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company PermitAdverse Effect. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetDecember 31, 1996, except as contemplated by this Agreement, Agreement or disclosed in any Exchange Act SEC Report filed after the date or as set forth in Section 3.07 of the Company Balance Sheet and prior to the date hereofDisclosure Schedule, the Company has conducted its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) any event or change having, individually or in the aggregate, a Material Adverse Effect; , except for general economic changes and changes that may affect generally the industries in which the Company operates, (ii) any material change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; , (viiv) any entry into any agreement or understanding, whether written or (if enforceable) oral, between the Company or any Subsidiary on the one hand, and any of their respective employees, on the other hand, providing for the employment of any such employees or any severance or termination benefits payable or to become payable by the Company or any Subsidiary to any employee, or (v) except as set forth permitted by this Agreement and except for increases made prior to the date of this Agreement in Section 3.07(viaccordance with past practices, any increase (including any increase effective in the future) in (A) the compensation, severance or termination benefits payable or to become payable by the Company or any Subsidiary to any employee (or any increase in benefits under any change in control severance arrangement applicable to employees of the Disclosure ScheduleCompany and the subsidiaries, increase in generally) or establishment of (B) any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option pension or other employee benefits (including, including without limitation, limitation the granting of stock options, stock appreciation rights, performance awards, rights or restricted stock awards)) made to, stock purchase for or other employee benefit planwith any employee. All contracts, agreements or any other increase in the compensation payable understandings, whether written or to become payable to any executive officers or key employees of (if enforceable) oral, between the Company or any Subsidiary on the one hand, and any of their respective employees on the other hand, are set forth in Schedule 3.07 of the Disclosure Schedule and have been furnished to Parent prior to the date hereof. At April 30, 1997, the working capital (current assets minus current liabilities) of the Company Subsidiarywas $10.1 million, of which $9.9 million consisted of cash, and the long-term indebtedness of the Company was less than $2.4 million. Since such date, except as contemplated by this Agreement or as set forth in Section 3.07 of the Disclosure Schedule, there has not been (i) any decrease in the working capital of the Company other than such as may result from actions taken in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or (ii) any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than increase in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the Bylong-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock term indebtedness of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since September 30, 1999, ------------------------------------ except for the date issuance of certain Stock Options set forth in Section 4.2 of the Company Balance SheetCorporation Disclosure Schedule, except as for any other matters referred to in Section 4.10 of the Corporation Disclosure Schedule, and except for the transactions contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof, the Company Corporation has conducted its business only in the ordinary course and in a manner consistent with past practices practice, and there has not been any (i) any material damage, destruction or loss, whether covered by insurance or not, (ii) any declaration, setting aside or payment of any dividend (whether in cash, stock or property) with respect to Preferred Stock or Common Stock or Common Stock Equivalent or any redemption, purchase or other acquisition by the Corporation of any of its securities, (iii) any change in the business, operations, properties, prospects, condition (financial or otherwise) or assets of the Corporation having a Material Adverse Effect; , (iiiv) any labor dispute, other than routine matters, none of which is material to the Corporation, (v) any entry into any commitment or transaction (including, without limitation, any borrowing or capital expenditure) other than in the ordinary course of business consistent with past practice, (vi) any material change by the Company Corporation in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiivii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company Corporation of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; or (vviii) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company PermitCorporation. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance Sheet, except Except as contemplated by this Agreement, or disclosed in any Exchange Act Report the SEC Documents filed after the date of the Company Balance Sheet and on or prior to the date hereof, since December 31, 1998, the Company has conducted its business only in the ordinary course and in a manner consistent with past practices practice, and there has not been any (i) Material Adverse Effect; any material adverse change with respect to the Company, (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend (whether in cash, stock or distribution in property) with respect to any of any the Company's capital stock other than the regular quarterly dividends on Shares in the amount of $.045 per Share (the "Company's regular dividend"), (iii) (A) any granting by the Company or any of its subsidiaries to any officer, director or employee of the Company or any optional redemptionof its subsidiaries of any increase in compensation, purchase bonus or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiarybenefits, except in the ordinary course of business consistent with prior practice or as was required under employment agreements in effect as of December 31, 1998, (B) any granting by the Company or any of its subsidiaries to any such officer, director or employee of, or any increase in, severance or termination pay, except as was required under employment, severance or termination agreements in effect as of December 31, 1998, or any amendment to any existing arrangement with such officer, director or employee, (C) except in accordance with past practices; (vii) amendment of any term of any outstanding security practice as to officers, directors or employees of the Company or any Company Subsidiary; (viii) damageof its subsidiaries, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used entry by the Company or any Company Subsidiary; of its subsidiaries into any employment, deferred compensation, severance, termination or other similar agreement (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of amendment to such existing agreement) with any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loansuch officer, advance director or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiaryemployee, or (BD) loans any establishment, adoption or advances to the Company amendment (except as required by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwiseapplicable law) of any provision of the Certificate of Incorporation collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or the By-lawsother benefit plan or arrangement covering any director, that would adversely affect the relative rights, preferences, qualifications, limitations officer or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets employee of the Company or any Company Subsidiaryof its subsidiaries, (iv) any damage, destruction or any mergerloss, consolidation whether or combination not covered by insurance, affecting the business or assets of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock its subsidiaries that has or shares of preferred stock of reasonably could be expected to have a material adverse effect on the Company; , (xviiv) increase any change in accounting methods, principles or practices or any change in any method of tax accounting by the authorized number of shares of Company materially affecting the assets, liabilities or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up business of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible intoand its subsidiaries, exchangeable fortaken as a whole, except insofar as may have been required by a change in generally accepted accounting principles, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xxvi) any amendment to a Material Contract or Company Permitevent which, if it had taken place following the execution of this Agreement, would not have been permitted by Section 4.1. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (ai) Except as reflected in the Company’s unaudited balance sheet as of June 30, 2004, since September 30, 2003, there has been no change or development or combination of changes or developments which, individually or in the aggregate, has had or is reasonably likely to have a Material Adverse Effect on the Company. (ii) Since September 30, 2003, the date Company and its Subsidiaries have carried on their respective businesses only in the ordinary and usual course of business consistent with their past practices (except for the incurrence of expenses in connection with this Agreement and the transactions contemplated hereby). (iii) Except as set forth in Section 5.01(h)(iii) of the Company Balance SheetDisclosure Schedule, except as contemplated by this Agreementsince September 30, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to 2003 through the date hereof, neither the Company nor any of its Subsidiaries has conducted its business only (A) increased the wages, salaries, compensation, pension, or other fringe benefits or perquisites payable to any officer, employee or director from the amount thereof in the ordinary course and in a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (ii) change by the Company in its accounting methodseffect as of September 30, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), 2003 other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedulepractice, declaration, setting aside granted any severance or payment of any dividend or distribution in respect of any capital stock of termination pay under which the Company or has any optional redemptioncontinuing obligation, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of to non-officer employees, entered into any loan, advance contract to make or capital contribution to grant any severance or investment in any Person by termination pay under which the Company or has any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiarycontinuing obligation, or paid any bonus to any director or officer, (B) loans declared, set aside or advances paid any dividend or other distribution (whether in cash, stock or property) with respect to any Company Stock, other than regular quarterly cash dividends on the Company by Common Stock, (C) effected or authorized any split, combination or reclassification of any Company Subsidiary; (xi) (A) transactionsStock, commitmentsor issued, contracts granted or agreements entered into by the authorized any Rights or Company Stock, or issued any other securities in respect of, in lieu of or in substitution for shares of Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other rightStock, other than, in either case, transactions, commitments, contracts or agreements than Company Common Stock issued in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwiseupon the exercise of Company Options set forth in Section 5.01(b) of the Company Disclosure Schedule, (D) changed in any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of material respect any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of accounting methods (or an agreement to sell) Core Business Assets underlying assumptions), principles or practices of the Company or its Subsidiaries affecting its assets, liabilities or businesses, including without limitation, any reserving, renewal or residual method, practice or policy, (E) made any material tax election by the Company Subsidiary, or its Subsidiaries or any mergersettlement or compromise of any material income tax liability by the Company or its Subsidiaries, consolidation (F) made any material change in the Company’s policies and procedures in connection with underwriting standards, origination, purchase and sale procedures or combination hedging activities with respect to any Loans, (G) suffered any strike, work stoppage, slow-down or other like labor disturbance, (H) been a party to a collective bargaining agreement, contract or other agreement or understanding with a labor union or organization, (I) had any union organizing activities, (J) made any contribution to or in respect of the Company ESOP or (K) made any Company Subsidiary with another entity; agreement or commitment (xvicontingent or otherwise) increase in the authorized number of shares of Common Stock or shares of preferred stock to do any of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitforegoing. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date Except as set forth in Section ------------------------------------ ------- 4.13 of the Company Balance SheetDisclosure Schedule, since March 31, 2000, except as ---- contemplated by this Agreement, Agreement or disclosed in any Exchange Act Report SEC Document filed after the date of the Company Balance Sheet since March 31, 2000 and prior to the date hereofof this Agreement, the Company has and its Subsidiaries have conducted its business their respective businesses only in the ordinary course and in a manner consistent with past practices practice, and there has not been any (i) any damage, destruction or loss, whether covered by insurance or not, having or which, insofar as reasonably can be foreseen, in the future could have a Material Adverse Effect; , (ii) any declaration, setting aside or payment of any dividend (whether in cash, stock or property) with respect to Common Stock, or any redemption, purchase or other acquisition of any of its securities, (iii) any change in the business, operations, properties, prospects, financial condition, assets or liabilities (including, without limitation, contingent liabilities) of the Company or any Subsidiary which could have a Material Adverse Effect, (iv) any labor dispute, other than routine matters, none of which is material to the Company and its Subsidiaries taken as a whole, (v) any entry into any material commitment or transaction (including, without limitation, any borrowing or capital expenditure) other than in the ordinary course of business consistent with past practice, (vi) any change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiivii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, or (vviii) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date Except as set forth on Schedule 3.7, since December 31, 2020, each of the Company Balance Sheet, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof, the Company Subsidiary has conducted its business only in the ordinary course and in a manner consistent with past practices Ordinary Course of Business and there has not been any a Material Adverse Effect. Without limiting the foregoing, except as set forth on Schedule 3.7, since December 31, 2020, neither the Company nor Subsidiary has (a) issued, purchased or redeemed any of its equity securities, or granted or issued any option, warrant or other right to purchase or acquire any such equity securities, (b) incurred or discharged any Liabilities, except Liabilities incurred or discharged in the Ordinary Course of Business, (c) encumbered any of its properties or assets, tangible or intangible, except for Encumbrances incurred in the Ordinary Course of Business, (d) (i) Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change granted any increase in the capital stock salaries (other than normal increases for employees averaging not in excess of ten percent per annum made in the Ordinary Course of Business) or other material compensation or benefits payable or to become payable to, or any advance (excluding advances for ordinary business expenses consistent with past practice) or loan to, any officer, director, shareholder, member, partner, employee or independent contractor of the Company or Subsidiary, (ii) made any Company Subsidiary; (iv) revaluation by the Company of payments to any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option bonus or similar plan except payments in the Ordinary Course of Business made pursuant to the Benefit Plans, (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, iii) granted or restricted stock awards), stock purchase or other employee benefit plan, or made any other increase material payment of any kind to or on behalf of any officer, director, member, partner, shareholder, employee or independent contractor other than payment of base compensation, commissions in accordance with existing policies and reimbursement for reasonable expenses in the compensation payable or to become payable to any executive officers or key employees Ordinary Course of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company SubsidiaryBusiness, or (Biv) loans adopted, amended or advances to the Company by terminated any Company Subsidiary; employee benefit plan (xiincluding any Benefit Plan) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition stay bonus, retention bonus, transaction bonus or acquisition of any assets change in control bonus plan or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other rightarrangement, other than, in either any case, transactionsannual health and welfare benefit renewals and amendments required by applicable Law, commitments(e) suffered any material change or, contracts to the knowledge of Sellers, received any threat of any change in any of its relations with, or agreements in any loss or, to the ordinary course knowledge of business consistent with past practices and those Sellers, threat of loss of, any of the suppliers, clients, distributors, customers or employees that are material to the Business, including any loss or change which may result from the transactions contemplated by this Agreement; , (xiif) amendmentdisposed of or failed to keep in effect any rights in, alteration to or repeal (by merger, consolidation or otherwise) for the use of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment Permit material to the Certificate Business, (g) changed any method of Incorporation by filing keeping of its books of account or accounting practices, (h) disposed of or failed to keep in effect any rights in, to or for the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification use of any of the Intellectual Property material to the Business, (i) sold, transferred or otherwise disposed of any assets, properties or rights of the Business with a value in excess of $25,000, except inventory sold in the Ordinary Course of Business, (j) entered into any transaction or Contract outside the Ordinary Course of Business or with any partner, shareholder, member, officer, director or other Affiliate of the Company's , Subsidiary or any Seller, (k) made or authorized any single capital stock into shares that would have a preference over expenditure in excess of $25,000, or on parity capital expenditures in excess of $50,000 in the aggregate, (l) changed or modified in any manner its existing credit, collection and payment policies, procedures and practices with the Series B Preferred Stock; respect to accounts receivable and accounts payable, respectively, including acceleration of collections of receivables, failure to make or delay in making collections of receivables (xvwhether or not past due), acceleration of payment of payables or failure to pay or delay in payment of payables, (m) sale incurred any material damage, destruction, theft, loss or business interruption, (n) made any declaration, payment or setting aside for payment of any distribution (whether in equity or an agreement property) with respect to sell) Core Business Assets any securities or interests of the Company or any Company Subsidiary, (o) made (except as consistent with past practice) or revoked any mergerTax election or settled or compromised any material Liability for Taxes with any Taxing Authority, consolidation (p) waived or combination released any material right or claim of the Company or Subsidiary or incurred any Company Subsidiary with another entity; (xvi) increase modifications, amendments or terminations of any Contracts which are in the authorized number of shares of Common Stock aggregate materially adverse to the Company, Subsidiary or shares of preferred stock the Business, or (q) instituted any material change in its conduct of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities Business or any security convertible into, exchangeable for, material change in its accounting practices or otherwise giving the holder thereof the right to obtain, equity securities methods of the Company; or (xx) any amendment to a Material Contract or Company Permitcash management. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date Except as set forth in Schedule 6.19 of the Company Balance Sheet, Disclosure Schedule or except as otherwise contemplated by this Agreement, since September 30, 1996 there has not been (a) any damage, destruction or disclosed casualty loss to the physical properties of the Companies (whether covered by insurance or not); (b) any material change in the business, operations or financial condition of the Companies; (c) any Exchange Act Report filed after entry into any transaction, commitment or agreement (including without limitation any borrowing or capital expenditure) material to the Companies's course of business; (d) any redemption or other acquisition by the Companies of the Companies' capital stock or any declaration, setting aside or payment of any dividend or other distribution in cash, stock or property with respect to the Companies' capital stock; (e) except for normal salary reviews, not to exceed 5%, with personnel on the anniversary date of the Company Balance Sheet employment, consistent with past practice, and prior compensation to the date hereofemployees and officers who are to resign at Closing and are listed on Schedule II, any increase in the Company has conducted rate or terms of compensation payable or to become payable by the Companies to its business only directors, officers, employees or any increase in the rate or terms of any bonus, pension, insurance or other employee benefit plan, payment or arrangement made to, for or with any such directors, officers or key employees; (f) any change in or acceleration of sales, or reduction of aggregate administrative, marketing, advertising and promotional expenses or research expenditures other than in the ordinary course and of business; (g) any sale, transfer or other disposition of any asset of the Companies to any party, including the Sellers, except for payment of third-party obligations incurred in a manner consistent the ordinary course of business in accordance with past practices and there has not been any the Companies' regular payment practices; (h) any termination or waiver of any rights of value to the business of the Companies; or (i) Material Adverse Effect; (ii) change any failure by the Company in Companies to pay its accounting methods, principles accounts payable or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than obligations in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetSeptember 30, 1999, except as contemplated by this Agreement, Agreement or as disclosed in any Exchange Act Company SEC Report filed after the date of the Company Balance Sheet and prior to the date hereofsince September 30, 1999, or as set forth in SCHEDULE 3.8, the Company has and the Company Subsidiaries have conducted its business their businesses only in the ordinary course and in a manner consistent with past practices and practice and, since such date, there has not been any (ia) any change in the business, operations, properties, condition (financial or otherwise), assets or liabilities (including, without limitation, contingent liabilities) of the Company or any Company Subsidiary having, individually or in the aggregate, a Material Adverse Effect; Effect on the Company, (iib) any material change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiic) change in the capital stock of the Company or any Company Subsidiary; (iv) material revaluation by the Company of any material asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; practice, (vd) any entry by the Company or any Company Subsidiary into any commitment or transaction material to the Company and the Company Subsidiaries taken as a whole, except as set forth in Section 3.07(vthe ordinary course of business and consistent with past practice, (e) of the Disclosure Schedule, any declaration, setting aside or payment of any dividend or distribution in respect of any the shares of its capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; , (vif) except as set forth in Section 3.07(vi) of the Disclosure Schedulepreviously disclosed to Acquiror, any increase in the benefits under, or the establishment of or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; practice, (viig) amendment of except as previously disclosed to Acquiror, any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee entry by the Company or any Company Subsidiary into any employment, consulting, severance, termination or indemnification agreement with any officer or employee of the Company or any Indebtedness Company Subsidiary or entry into any such agreement with any other than in person outside the ordinary course of business and consistent with past practices; business, or (xh) making of any loan, advance or capital contribution to or investment in any Person agreement by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments take any of the actions described in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those this Section 3.8 except as expressly contemplated by this Agreement; (xii) amendment. Between September 30, alteration or repeal (by merger1999, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; date of this Agreement (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiaryinclusive), or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permit. (b) Neither neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolventSubsidiaries has taken, or seeking liquidationagreed to take, winding up any action that would constitute a material breach of Section 6.1 or reorganization, arrangement, adjustment, protection, relief or composition Section 6.2 if taken after the date of its debts under any Law relating to bankruptcy, insolvency or reorganizationthis Agreement.

Absence of Certain Changes or Events. (a) Since December 31, 2015, there has been no change or development or combination of changes or developments which, individually or in the date of the Company Balance Sheetaggregate, except as contemplated by this Agreementhas had or is reasonably likely to have a Material Adverse Effect on CBNK. (b) Since December 31, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereof2015, the Company CBNK has conducted carried on its business only in the ordinary course and in a manner consistent with past practices and there has not been any (i) Material Adverse Effect; (ii) change by the Company in its accounting methods, principles or policies, except as may be required by US GAAP; (iii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary usual course of business consistent with its past practices;practices (except for the incurrence of expenses in connection with this Agreement). (vc) except Except as set forth in Section 3.07(vCBNK Disclosure Schedule 3.11, since December 31, 2015, CBNK has not (i) of increased the Disclosure Schedulewages, declarationsalaries, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, fringe benefits or any other increase in the compensation payable or to become perquisites payable to any executive officers officer, employee or key employees director from the amount thereof in effect as of the Company December 31, 2015, granted any severance or termination pay, entered into any Company Subsidiarycontract to make or grant any severance or termination pay, except in the ordinary course of business consistent with past practices; or paid any bonus, (viiii) amendment of declared, set aside or paid any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction dividend or other casualty loss distribution (whether in cash, stock or property) with respect to any material asset of CBNK’s capital stock, (iii) effected or property ownedauthorized any split, leased combination or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's CBNK’s capital stock into or any issuance or issued any other securities in respect of, in lieu of or in substitution for shares that would have a preference over or on parity with the Series B Preferred Stock; of CBNK’s capital stock, (xviv) sale of changed any accounting methods (or an underlying assumptions), principles or practices of CBNK affecting its assets, liabilities or business, including without limitation, any reserving, renewal or residual method, practice or policy, except in accordance with GAAP, (v) made any tax election by CBNK or any settlement or compromise of any income tax liability by CBNK, (vi) made any material change in CBNK’s policies and procedures in connection with underwriting standards, origination, purchase and sale procedures or hedging activities with respect to any Loans, (vii) suffered any strike, work stoppage, slow-down, or other labor disturbance, (viii) been a party to a collective bargaining agreement, contract or other agreement or understanding with a labor union or organization, (ix) had any union organizing activities or (x) made any agreement or commitment (contingent or otherwise) to sell) Core Business Assets do any of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitforegoing. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date Except as set forth in SECTION 3.08 of the Company Balance SheetDisclosure Schedule, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after since the date of the Company Latest Balance Sheet and prior to the date hereofDate, the Company has conducted its business only in the ordinary course and in a manner consistent with past practices practice and there has not been any been: (ia) Material Adverse Effect; any damage, destruction or loss (iiwhether or not covered by insurance) with respect to any material assets of the Company; (b) any change by the Company in its accounting methods, principles or policiespractices; (c) any declaration, except as may be required by US GAAP; (iii) change setting aside or payment of any dividends or distributions in respect of shares of the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition by the Company of any of its securities; ; (vid) except as set forth in Section 3.07(vi) of the Disclosure Schedule, any increase in the benefits under, or the establishment of or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase profit sharing or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive directors, officers or key employees of the Company or any Company SubsidiaryCompany, except for annual bonuses or merit increases in salaries or wages in the ordinary course of business and consistent with past practices; practice; (viie) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction payment or other casualty loss with respect to any material asset or property owned, leased or otherwise used transfer of assets by the Company or to any Company Subsidiary; Stockholder, other than compensation payments in the ordinary course of business and consistent with past practice; (ixf) incurrence, assumption or guarantee any revaluation by the Company or any Company Subsidiary of any Indebtedness of its assets, including the writing down or off of notes or accounts receivable, other than in the ordinary course of business and consistent with past practices; ; (xg) making of any loan, advance or capital contribution to or investment in any Person entry by the Company into any commitment or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances transaction material to the Company by including, without limitation, incurring or agreeing to incur capital expenditures in excess of $50,000; (h) any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition incurrence of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or indebtedness for borrowed money other right, other than, in either case, transactions, commitments, contracts or agreements than trade payables incurred in the ordinary course of business consistent with past practices and those contemplated by this Agreement; business; (xiii) amendmenta loss, alteration or repeal written notice threatening a loss, of any customer or supplier set forth on SECTION 3.17 of the Company Disclosure Schedule; (by merger, consolidation j) the termination of employment (whether voluntary or otherwiseinvoluntary) of any provision of the Certificate of Incorporation officer or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities key employee of the Company; or or (xxk) any amendment change, occurrence or circumstance having or reasonably likely to have, individually or in the aggregate, a Material Contract material adverse effect on the business, operations, assets, financial condition, results of operations or Company Permitprospects of the Company. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance SheetApril 30, 1998, except as contemplated by this Agreement, set forth in Section 3.13 of the Company Disclosure Schedule or as disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and SEC Document prior to the date hereofJuly 31, 1998, the Company and each of its Subsidiaries has conducted its business only in the ordinary course and in a manner consistent with past practices practice, and there has not been any (i) any damage, destruction or loss, whether covered by insurance or not, having or which, insofar as reasonably can be foreseen, in the future would have a Material Adverse Effect; , (ii) any declaration, setting aside or payment of any dividend (whether in cash, stock or property) with respect to Company Common Stock, or any redemption, purchase or other acquisition of any of its securities, (iii) any event or change in the business, operations, properties, condition (financial or otherwise), assets or liabilities (including, without limitation, contingent liabilities) of the Company or any of its Subsidiaries having, or which, insofar as reasonably can be foreseen, in the future would have a Material Adverse Effect, (iv) any labor dispute, other than routine matters, none of which is material to the Company or any of its Subsidiaries, (v) any entry into any material commitment or transaction (including, without limitation, any borrowing or capital expenditure) other than in the ordinary course of business consistent with past practice, (vi) any material change by the Company in its accounting methods, principles or policiespractices, except as may be required by US GAAP; (iiivii) change in the capital stock of the Company or any Company Subsidiary; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-writing off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (vviii) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any of its Subsidiaries, or (ix) entry by the Company Subsidiary, except or any of its Subsidiaries into any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property other than non-exclusive licenses granted in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Company or any Company Subsidiary of any Indebtedness other than in the ordinary course of business and consistent with past practices; (x) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or other right, other than, in either case, transactions, commitments, contracts or agreements in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated herein; (xiii) creation of any new class of capital stock of the Company; (xiv) reclassification of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitpractice. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.

Absence of Certain Changes or Events. (a) Since the date of the Company Balance Sheet, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date of the Company Balance Sheet and prior to the date hereofDate, the Existing Company has Entities have conducted its business only in the ordinary course and in a manner consistent with past practices practice, and there is not and has not been any: (i) Material Adverse Effectmaterial adverse change with respect to the Existing Company Entities; (ii) change event which, if it had taken place following the execution of this Agreement, would not have been permitted by the Company in its accounting methods, principles or policies, except as may be required by US GAAPSection 3.01 without prior consent of Pubco; (iii) change in condition, event or occurrence which could reasonably be expected to prevent, hinder or materially delay the capital stock ability of the Existing Company or any Company SubsidiaryEntities to consummate the transactions contemplated by this Agreement; (iv) revaluation by the Company of any asset (including, without limitation, any writing down of the value of inventory or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practices; (v) except as set forth in Section 3.07(v) of the Disclosure Schedule, declaration, setting aside or payment of any dividend or distribution in respect of any capital stock of the Company or any optional redemption, purchase or other acquisition of any of its securities; (vi) except as set forth in Section 3.07(vi) of the Disclosure Schedule, increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company Subsidiary, except in the ordinary course of business consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiary; (viii) damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Company Subsidiary; (ix) incurrence, assumption or guarantee by the Existing Company or any Company Subsidiary Entities of any Indebtedness indebtedness for borrowed money other than in the ordinary course and in amounts and on terms consistent with past practices or as disclosed to Pubco in writing except for the Amended and Restated Agreement executed among the Company, WFOE, NewMargin Growth Fund L.P., Ceyuan Ventures II, L.P., Ceyuan Ventures Advisors Fund II, LLC and Pubco as of business July 31, 2009, the Amended and Restated Binding Letter of Intent among the Company, WFOE, NewMargin Growth Fund L.P., Ceyuan Ventures II, L.P., Ceyuan Ventures Advisors Fund II, LLC and Pubco as of July 31, 2009, and the Promissory Note issued by the Company to Pubco dated as of July 31, 2009; (v) creation or other incurrence by the Company of any lien on any asset other than in the ordinary course consistent with past practices; (xvi) making of transaction or commitment made, or any loancontract or agreement entered into, advance or capital contribution to or investment in any Person by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company Subsidiary; (xi) (A) transactions, commitments, contracts or agreements entered into by the Company or any Company Subsidiary relating to any material disposition or acquisition of any their assets or business (including the acquisition or (Bdisposition of any assets) modification, amendment, assignment, termination or any relinquishment by the Company or any Company Subsidiary of any contract, License contract or other right, other than, in either case, transactionsmaterial to the Company, commitments, contracts or agreements other than transactions and commitments in the ordinary course of business consistent with past practices and those contemplated by this Agreement; (xiivii) amendment, alteration or repeal (by merger, consolidation or otherwise) of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreementlabor dispute, other than the amendment routine, individual grievances, or, to the Certificate of Incorporation by filing knowledge of the Certificate Existing Company Entities, any activity or proceeding by a labor union or representative thereof to organize any employees of Amendment and the Amended and Restated By-laws as contemplated hereinany Existing Company Entity or any lockouts, strikes, slowdowns, work stoppages or threats by or with respect to such employees; (xiiiviii) creation payment, prepayment or discharge of liability other than in the ordinary course of business or any failure to pay any liability when due; (ix) write-offs or write-downs of any new class of capital stock assets of the Company; (xivx) reclassification creation, termination or amendment of, or waiver of any of the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock; (xv) sale of (or an agreement to sell) Core Business Assets of the Company or right under, any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock material contract of the Company; (xviixi) increase in damage, destruction or loss having, or reasonably expected to have, a material adverse effect on the authorized number of shares of or issuance of any additional Series A Preferred StockCompany; (xviiixii) initiation of other condition, event or occurrence which individually or in the aggregate could reasonably be expected to have a voluntary liquidation, dissolution material adverse effect or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right give rise to obtain, equity securities of a material adverse change with respect to the Company; or (xxxiii) any amendment agreement or commitment to a Material Contract or Company Permit. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate do any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganizationthe foregoing.

Absence of Certain Changes or Events. (a) Since August 31, 2004, through and including the date of the Company Balance SheetClosing Date, except as contemplated by this Agreement, or disclosed in any Exchange Act Report filed after the date set forth on Section 3.7 of the Company Balance Sheet and prior to the date hereofDisclosure Schedule, the Company Seller has conducted its business only in the ordinary course and in a manner consistent with past practices Ordinary Course and there has not been any: (i) event or condition that has had, or could reasonably be expected to have, a Material Adverse Effect; (ii) change by in the Company in its accounting methods, principles Seller's authorized or policies, except as may be required by US GAAPissued ownership interest; (iii) change loss or damage (whether or not covered by insurance) affecting any of the Purchased Assets in excess of $5,000 in the capital stock of the Company or any Company Subsidiaryaggregate; (iv) revaluation by amendment or modification to the Company of any asset (including, without limitation, any writing down of the value of inventory Seller's organizational documents or writing-off of notes or accounts receivable), other than in the ordinary course of business consistent with past practicesoperating agreement; (v) except as set forth in Section 3.07(v) of increase by the Disclosure Schedule, declaration, setting aside or payment Seller of any dividend or distribution in respect of any capital stock of the Company or any optional redemptionbonuses, purchase salaries or other acquisition compensation to the Member, director, officer or employee (except, in the case of employees, payments of salaries or other compensation in the Ordinary Course) or entry by the Seller into any of its securitiesemployment, severance or similar contract with any director, officer or employee; (vi) payment or distribution to the Member except as set forth in Section 3.07(vi) for cash dividends from available cash, the purchase of goods received by the Seller after August 31, 2004 or the payment of expenses of the Disclosure ScheduleSeller incurred in the Ordinary Course after August 31, 2004 by the Seller but paid by the Member; (vii) adoption of, or any increase in the payments to or establishment of benefits under, any profit sharing, bonus, insurance, severance, deferred compensation, savings, insurance, pension, retirement, profit-sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards, or restricted stock awards), stock purchase or other employee benefit plan, plan for or with any other increase in the compensation payable or to become payable to any executive officers or key employees of the Company or any Company SubsidiarySeller, except in accordance with the ordinary course terms of business existing plans, procedures or arrangements and consistent with past practices; (vii) amendment of any term of any outstanding security of the Company or any Company Subsidiarypractice; (viii) damageentry into, destruction breach or other casualty loss with respect to default under, termination of, receipt of a notice of termination of or cancellation or waiver of any material asset (A) Purchased Contract or property owned, leased transaction or otherwise used by (B) claims or rights of the Company or any Company SubsidiarySeller; (ix) incurrencesale, assumption lease or guarantee by the Company or any Company Subsidiary other disposition of any Indebtedness Purchased Asset or other than in property of the ordinary course Seller or mortgage, pledge or imposition of business and consistent with past practicesany Lien on any Purchased Asset; (x) making of any loan, advance or capital contribution to or investment change in any Person the accounting methods used by the Company or any Company Subsidiary other than (A) loans, advances or capital contributions to or investments in any wholly owned Company Subsidiary, or (B) loans or advances to the Company by any Company SubsidiarySeller; (xi) (A) transactions, commitments, contracts or agreements entered into acquisition of assets by the Company or any Company Subsidiary relating to any material disposition or acquisition of any assets or business or (B) modification, amendment, assignment, termination or relinquishment by the Company or any Company Subsidiary of any contract, License or Seller other right, other than, in either case, transactions, commitments, contracts or agreements than in the ordinary course of business consistent with past practices and those contemplated by this AgreementOrdinary Course; (xii) amendment, alteration or repeal (by merger, consolidation or otherwise) change in the terms of any provision of the Certificate of Incorporation or the By-laws, that would adversely affect the relative rights, preferences, qualifications, limitations or restrictions of the Purchaser as the holder of the Series B Preferred Stock, Warrants or Common Stock at the Closing or the rights of the Purchaser under this Agreement, other than the amendment to the Certificate of Incorporation by filing of the Certificate of Amendment and the Amended and Restated By-laws as contemplated hereinPurchased Contracts; (xiii) creation indication by any customer, franchisee or supplier of the Seller of any new class intention to discontinue or change the terms of capital stock of its relationship with the CompanySeller; (xiv) reclassification of execution of, or agreement to execute or enter into, any of franchise agreement or lease with a host store that was not approved in writing by the Company's capital stock into shares that would have a preference over or on parity with the Series B Preferred Stock;Buyer; or (xv) sale of (agreement, whether oral or an agreement written, by the Seller to sell) Core Business Assets do any of the Company or any Company Subsidiary, or any merger, consolidation or combination of the Company or any Company Subsidiary with another entity; (xvi) increase in the authorized number of shares of Common Stock or shares of preferred stock of the Company; (xvii) increase in the authorized number of shares of or issuance of any additional Series A Preferred Stock; (xviii) initiation of a voluntary liquidation, dissolution or winding up of the Company or of any Company Subsidiary; (xix) commencement of any tender or exchange offer or redemption involving the Company's equity securities or any security convertible into, exchangeable for, or otherwise giving the holder thereof the right to obtain, equity securities of the Company; or (xx) any amendment to a Material Contract or Company Permitforegoing. (b) Neither the Company nor any Company Subsidiary has made a general assignment for the benefit of creditors, and no proceeding (a "Bankruptcy Proceeding") has been instituted by or against the Company or any Company Subsidiary seeking to adjudicate any of them a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization.