Common use of Certain Actions Clause in Contracts

Certain Actions. Except with respect to this Agreement and the transactions contemplated hereby, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicit, initiate or knowingly encourage the submission of any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of business), or more than a 20% interest in the total voting securities of ACE or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiaries.

Certain Actions. Except with respect to this Agreement During the period between the date hereof and the transactions earlier of the Effective Date or the termination of this Plan, except as otherwise contemplated herebyby this Plan of Merger, neither ACE nor Colonial Bank shall not, without first obtaining the written approval of VRB, which will not be unreasonably withheld: (a) Amend its Articles of Incorporation or Bylaws; (b) Declare or pay any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly dividend (except (i) solicit, initiate or knowingly encourage dividends on its preferred stock as required by the submission of any Takeover Proposal (as defined below) or terms thereof and (ii) participate in the event the closing occurs after February 28, 1998, a dividend not in excess of Colonial Bank's adjusted net income after December 31, 1997 through the date of closing calculated without regard to the items described in clauses (i), (ii), and (iii) of Section 6.13); redeem, repurchase or otherwise acquire or agree to acquire any discussions Colonial Bank Stock or negotiations regardingmake or commit to make any other distribution to Colonial Bank's stockholders; (c) Issue, sell, or furnish deliver; agree to issue, sell or deliver; or grant or agree to grant any person shares of any nonpublic information with respect toclass of the stock of Colonial Bank; any securities convertible into any of such shares; or any options, warrants, or take any other action designed or reasonably likely rights to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, purchase; (xd) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products Except in the ordinary course of business, borrow or agree to borrow any funds or voluntarily incur, assume or become subject to, whether directly or by way of guarantee or otherwise, any commitment, obligation or liability (absolute or contingent); or cancel or agree to cancel any debts or claims; (e) Except in the ordinary course of business, lease, sell or transfer; agree to lease, sell or transfer, or more than a 20% interest in the total voting securities of ACE grant or agree to grant any preferential rights to lease or acquire, any of its subsidiaries assets, property or rights, or make or permit any amendment or termination of any contract, agreement, instrument or other right to which Colonial Bank is a party and which is material to Colonial Bank's business, assets, earnings, operation or condition (financial or otherwise); or mortgage, pledge or subject to a lien or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or other encumbrance any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution tangible or similar transaction involving ACE or any of its subsidiaries.intangible;

Certain Actions. Except with respect Without the prior written consent of the Holders, which consent may be withheld in the sole discretion of the Holders, the Company will not, and will not permit any Subsidiary to: (a) permit to occur any amendment, alteration, or modification of the Bylaws of the Company, as constituted on the date of this Agreement, the effect of which, in the sole judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of the Company under this Agreement, the Warrants, the Certificate or the Shareholder Agreement or permit to occur any amendment, alteration, or modification of the Restated Articles of Incorporation or other charter or organizational documents of the Company, as constituted on the date of this Agreement and except to the transactions contemplated herebyextent necessary to comply with Section 4.04(j) or 4.10; (b) except as otherwise permitted in the Certificate or required by the Shareholder Agreement, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicitdeclare or make any dividends or distributions of its cash, initiate stock, property, or knowingly encourage assets or redeem, retire, purchase, or otherwise acquire, directly or indirectly, any of the submission Capital Stock or capital stock or securities of any Takeover Proposal Affiliate or any Subsidiary of the Company, or any securities convertible or exchangeable into Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company or otherwise make any distribution on account of the purchase, repurchase, redemption, put, call or other retirement of any shares of Capital Stock of the Company or any Subsidiary thereof or of any warrant, option or other right to acquire such shares (except pursuant to the Purchase Documents or the Certificate) (each as defined below) in Section 11.1 of the Note Agreement), or (ii) participate make any payment or distribution on account of any Indebtedness of the Company which is subordinate to the Senior Subordinated Notes (except that Subsidiaries may make distributions to the Company), and (iii) except as otherwise provided for in the Note Agreement, pay any discussions professional consulting or negotiations regarding, management fees or furnish any other payments to any person shareholders of Parent or any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, Subsidiary; provided, however, that if, at any time prior the following shall be permitted as exceptions to the Meeting preceding provisions of this clause (b): declare and make payments of (A) dividends in cash from Subsidiaries of the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent Company to the date hereofCompany to the extent necessary to permit the Company or its Subsidiaries to pay the Senior Subordinated Obligations (as defined in Section 11.1 of the Note Agreement) due and payable from the Company or its Subsidiaries to each Purchaser, (xB) furnish information with respect to such party to any person dividends or stock repurchases permitted by the Senior Loan Agreement (as defined in Section 11.1 of the Note Agreement), and (C) dividends on the Preferred Stock as provided in the Certificate and payments made pursuant to a customary confidentiality agreement and the Purchase Documents (yas defined in Section 11.1 of the Note Agreement); (c) participate in discussions and negotiations regarding such Takeover Proposal. For purposes effect any sale, lease, assignment, transfer, or other conveyance of this Agreement, "Takeover Proposal" means any inquiry, proposal material portion of the assets or offer from any person other than GPI relating to any direct operations or indirect acquisition the revenue or purchase income generating capacity of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole the Company (other than inventory in the ordinary course of business and other assets reasonably and in good faith determined by the Company to be obsolete or no longer necessary to the business of the Company and other asset dispositions permitted by the Senior Loan Agreement including the Asset Transfer (as defined in the Senior Loan Agreement)) or to take any such action that has the effect of any of the foregoing; (d) except for issuances of stock permitted by the Senior Loan Agreement, the Permitted Stock, the Acquisition Merger, the Subsidiary Mergers (each as defined in Section 11.1 of the Note Agreement) and the other mergers permitted by the Senior Loan Agreement or pursuant to the express terms of this Agreement or the Shareholder Agreement, issue or sell, or otherwise dispose of any Capital Stock (including the Series B Preferred Stock) or Capital Stock of any Subsidiary, dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock of the Company or of any Subsidiary; (e) enter into any business that the Company or any Subsidiary is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise except for businesses and acquisitions permitted by the Senior Loan Agreement); (f) except for the employment agreements disclosed in Schedule 7.10 to the Note Agreement and except for Permitted Stock, enter into any transaction or transactions with any director, officer, employee, or shareholder of products the Company, or any Affiliate or relative of the foregoing except upon terms that, in the opinion of the Holders, are fair and reasonable and that are, in any event, at least as favorable as would result in a comparable arm's-length transaction with a Person not a director, officer, employee, shareholder, or Affiliate of the Company or any Affiliate or related party of the foregoing, or advance any monies to any such Persons, except for travel advances in the ordinary course of business; (g) except for the employment agreements disclosed in Schedule 7.10 to the Note Agreement, increase the amount of remuneration permitted under Section 7.10 of the Note Agreement; (h) except for (i) acquisitions permitted under the Note Agreement and Section 9.2 of the Senior Loan Agreement, (ii) Permitted Indebtedness (as defined in Section 11.1 of the Note Agreement), and (iii) other capital contributions, permitted purchases, advances and loans permitted by the Senior Loan Agreement, acquire any debt or more than a 20% equity interest in any Person or establish or acquire a Subsidiary or make any additional capital contribution or purchase any additional equity in any Subsidiary or make any advances or loans to any Subsidiary or transfer any technology or assets to any Subsidiary; (i) except for the total voting securities employment agreements disclosed in Schedule 7.10 of ACE the Note Agreement, modify, amend, terminate or waive any material provision of the Employment Agreements; (j) allow the aggregate par value of the Capital Stock subject to the Warrants from time to time to exceed the price payable upon exercise of the Warrants, as adjusted from time to time; or (k) obligate itself or otherwise agree to take, permit or enter into any of its subsidiaries or any tender offer or exchange offer that if consummated would result the events described in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariessubsections (a) through (j) above.

Certain Actions. Except From and after the date of this Agreement, the --------------- Company, without the prior written consent of the Holders (such consent being one hundred percent (100%) of the Holders with respect to each of clauses (a), (b), (f), (g), (n), (p)(iii), (p)(iv), (p)(v) and (u) below), which consent may be withheld in the sole discretion of each such Holder, will not, and will not permit any Subsidiary to: (a) except as otherwise contemplated by this Agreement, permit to occur any amendment, alteration, or modification of its articles of incorporation, as amended, or other charter or organizational documents of the Company, in each case as constituted on the date of this Agreement, the effect of which, in the good faith judgment of any Holder, would be to adversely alter, impair, or affect, either the rights and benefits of any of the Holders or the duties and obligations of the Company under or with respect to this Agreement Agreement, the Other Agreements, the Warrant or the Series D Preferred Stock; (b) except as otherwise permitted pursuant to the terms of this Agreement, the Other Agreements or the Amended and the transactions contemplated herebyRestated Articles, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicitdeclare or make any dividends or distributions of its cash, initiate stock, property or knowingly encourage assets or (ii) redeem, retire, purchase or otherwise acquire, directly or indirectly, any of the submission Capital Stock of the Company or any of the Capital Stock of any Takeover Proposal Affiliate of the Company; (c) effect any sale, lease, assignment, transfer or other conveyance of any portion of the assets or operations or the revenue or income generating capacity of the Company (other than inventory in the ordinary course of business and other assets reasonably and in good faith determined by the Company to be obsolete or no longer necessary to the business of the Company) or to take any such action that has the effect of any of the foregoing; (d) except for the issuance of Warrant Shares upon exercise of the Warrants or as defined belowotherwise provided pursuant to the terms of this Agreement, the Other Agreements Agreement or the Amended and Restated Articles, (i) issue, sell or otherwise dispose of any Capital Stock of the Company or any Capital Stock of any Subsidiary, (ii) dissolve or liquidate the Company or any of its Subsidiaries or (iii) effect any consolidation or merger involving the Company or any reclassification, corporate reorganization, stock split, reverse stock split or other change of or in any class of Capital Stock; (e) enter into any line of business that the Company is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise); (f) except for the issuance of Warrant Shares upon exercise of the Warrants or as otherwise provided pursuant to the terms of this Agreement or the Other Agreements, (i) enter into any transaction or transactions with any Initial Holder, any director, officer, employee, securityholder or Affiliate of the Company, or any Affiliate of the foregoing, except upon terms that, in the opinion of all Holders, are fair and reasonable and that are, in any event, at least as favorable as would result in a comparable arm's-length transaction with a Person who is not a director, officer, employee, securityholder or Affiliate of the Company, or any Affiliate of the foregoing, or (ii) advance any monies to any such Persons; (g) except for ordinary and reasonable annual directors fees to be paid by the Company to its outside directors and except as otherwise provided in the Monitoring Agreement, pay any management, consulting or similar fee to or for the direct or indirect benefit of any of its officers, directors, Affiliates or securityholders; (i) acquire any debt or equity interest in any Person, (ii) establish or acquire any Subsidiary not in existence as of the date hereof, (iii) make any additional capital contribution or purchase any additional equity in any existing Subsidiary, (iv) make any advances or loans to any Subsidiary or (iv) during any fiscal year of the Company, transfer any assets to its Subsidiaries which, either alone or in the aggregate, have a fair market value in excess of two hundred fifty thousand dollars ($250,000); (i) allow the aggregate par value of the Capital Stock subject to the Warrants from time to time to exceed the price payable upon exercise of the Warrants, as adjusted from time to time; (j) except as otherwise provided herein, file a registration statement with the Commission or any state securities commission or agency regarding any Capital Stock of the Company; (k) except as otherwise provided in the Senior Loan Documents, incur or suffer to exist any Indebtedness (including, without limitation, any Indebtedness incurred in respect of any revolving credit loans, term loans, capital lease obligations and/or guaranties) in excess of eight million dollars ($8,000,000); (l) except as otherwise provided in the Senior Loan Documents, permit the assets of the Company to be subject to any Liens; (m) undertake any litigation against any third party (other than litigation instituted against one or more account debtors of the Company with respect to one or more unpaid accounts, where the aggregate amount in controversy is less than one hundred thousand dollars ($100,000)); (n) during any fiscal year, increase by more than five percent (5%) the total annual compensation (including, but not limited to, base salary, bonus and perquisites) of any executive officer of the Company; (o) enter into any contract or other agreement (other than the Senior Loan Documents) that obligates the Company to make annual payments thereunder in excess of two hundred fifty thousand dollars ($250,000); (i) terminate any Key Employee of the Company or any of its Subsidiaries, (ii) hire any Person to serve as Key Employee of the Company or any of its Subsidiaries, (iii) grant any additional equity-based compensation to any Key Employee of the Company or any of its Subsidiaries, (iv) make any severance payment to any Key Employee in connection with any termination of the employment of such Key Employee (other than, with respect to the Management Employees only, severance payments contemplated by the Employment Agreements, as in effect on the Closing Date), (v) modify (A) the severance payment obligations of the Company or (B) the incentive compensation payable by the Company, in each case set forth in the Employment Agreements, as in effect on the Closing Date; (q) acquire during any twelve (12) month period any Property or other assets from any Person or Person, the aggregate value of which exceeds five hundred thousand dollars ($500,000); (r) adopt any annual budget for the Company or any of its Subsidiaries; provided, however, that for purposes of this Section 8.04(r) only and after the -------- ------- --------------- Closing Date, the consent of the Holders shall be deemed to have been received if the Holder Representatives approve such budget; (s) make or agree to make any capital expenditures other than capital expenditures that (i) are the subject of contractually committed purchase orders as of the date hereof and are disclosed on Schedule 7.01(l) or (ii) participate do not ---------------- exceed two hundred fifty thousand dollars ($250,000) individually and one million dollars ($1,000,000) in the aggregate; (t) make any discussions tax election or negotiations regarding, settle or furnish to compromise any person any nonpublic information with respect to, material tax liability or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to the computation of taxes or the preparation of tax returns or reports, in each case that is inconsistent with past practice; (u) enter into or adopt any person pursuant to a customary confidentiality agreement and (y) participate new Employee Plan or other Benefit Arrangement or amend in discussions and negotiations regarding such Takeover Proposal. For purposes any material respect any Employee Plan or other Benefit Arrangement in effect as of the date of this Agreement, "Takeover Proposal" means in each case except as otherwise required by applicable law; (i) fail to maintain in full force and effect any inquiry, proposal Permit that is required in or offer from any person other than GPI relating to any direct or indirect acquisition or purchase for the conduct of a substantial amount the businesses of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of business), or more than a 20% interest in the total voting securities of ACE Company or any of its subsidiaries Subsidiaries, or any tender offer (ii) sell, transfer, license or exchange offer that if consummated would result in any person beneficially owning 20% or more otherwise dispose of any class of equity securities of ACE rights or interests under such Permits; (w) except as may be required by GAAP, make any change in or to its accounting methods or any of its subsidiaries tax or any mergeraccounting principles or practices; or (x) obligate itself or otherwise agree to take, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution permit or similar transaction involving ACE or enter into any of its subsidiaries.the events described in subsections (a) through (w) --------------- --- of this Section 8.04. ------------

Certain Actions. Except with respect to this Agreement Effective on the date hereof and until the transactions contemplated hereby, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly earlier of (i) October 1, 2005 and (ii) the date on which there are no longer outstanding any shares of Convertible Preferred Stock, the Stockholders will not, and will not permit any Investment Fund Affiliate to: (a) make, or take any action to solicit, initiate or knowingly encourage, an Acquisition Proposal; (b) make, or in any way participate in, any “solicitation” of “proxies” to vote (as such terms are defined in Rule 14a-1 under the Exchange Act), solicit any consent with respect to the voting of any Voting Securities or nominate, or solicit any votes or proxies for the nomination of, any directors with respect to the Company (other than as contemplated by Section 2.1 hereof); (c) form, join or encourage the submission formation of any Takeover Proposal “group” (as defined belowwithin the meaning of Section 13(d)(3) of the Exchange Act) with respect to the voting of any Voting Securities (other than any “group” consisting only of the Stockholders and Investment Fund Affiliates); (d) call or seek to have called any meeting of the stockholders of the Company; (iie) participate in solicit, seek to effect, negotiate with or voluntarily provide any discussions or negotiations regarding, or furnish confidential information to any person any nonpublic information other Person with respect to, or take otherwise make any other action designed or reasonably likely to facilitate any inquiries public announcement (except as required by Law or the making requirements of any proposal that constitutes relevant stock exchange) whatsoever with respect to, (i) any Takeover Proposalmerger or other business combination transaction involving the Company, provided, however, that (ii) the acquisition of Voting Securities if, at any time prior to as a result thereof, the Meeting the Board of Directors of ACE determines in good faithPerson acquiring such Voting Securities, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply together with its fiduciary duties to stockholders under applicable lawAffiliates, ACE maywould Beneficially Own in the aggregate more than 15% of the outstanding Voting Securities, or (iii) the acquisition, in response to one transaction or a Takeover Proposal which was not solicited subsequent to series of related transactions, of more than 50% of the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement assets or earning power of the Company and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, subsidiaries taken as a whole (an “Acquisition Transaction”); (f) enter into an agreement, arrangement or understanding with respect to any Acquisition Transaction; (g) assist, advise or encourage any other than the purchase of products Person in the ordinary course of business), or more than a 20% interest in the total voting securities of ACE or doing any of its subsidiaries the foregoing; or (j) request the Company to amend, waive or not to enforce any tender offer or exchange offer that if consummated would result provision of this section, in any person beneficially owning 20% or more each case unless specifically invited by the Company’s Board of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariesDirectors to do so.

Certain Actions. Except with respect to this Agreement From the Effective Date until the Closing Date, Sellers shall not take any of the following actions without first obtaining the consent of Buyer (which shall not be unreasonably withheld or delayed), and if necessary the transactions contemplated herebyBankruptcy Court: (a) amend or terminate any Assumed Contract, neither ACE nor or enter into any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicit, initiate or knowingly encourage new Contract involving a commitment on the submission part of any Takeover Proposal Seller in excess of Two Hundred Fifty Thousand Dollars (as defined below$250,000); (b) make offers to any employees of the Business for employment with any Person after Closing or (ii) participate make any material change in any discussions or negotiations regardingpersonnel, operations, finances, accounting policies, or furnish real or personal property of the Business; (c) increase compensation payable or to any person any nonpublic information with respect become payable to, make a bonus or severance payment to, or take otherwise enter into one or more bonus or severance agreements with, any employee or agent of any Seller except pursuant to the Retention Plan or any other action designed plan approved by the Bankruptcy Court (and Sellers' pre-petition bank lenders); (d) create, assume or reasonably likely permit to facilitate exist any inquiries new Encumbrance upon any of the Assets, except to provide adequate protection as is required by the Bankruptcy Court; (e) sell, assign, transfer, distribute or the making otherwise transfer or dispose of any proposal that constitutes property, plant or equipment of any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole Seller (other than an Excluded Asset) having a value in excess of Fifty Thousand Dollars ($50,000); (f) take any action (other than in connection with the purchase of products in Bankruptcy Cases and filing the Sale Motion) outside the ordinary course of business)the Business, except as permitted by the Bankruptcy Court; (g) amend or agree to amend the articles or certificate of incorporation or other organizational documents or the bylaws or other governing documents of any Seller or otherwise take any action relating to any liquidation or dissolution of any Seller; (h) create, incur, assume, guarantee or otherwise become liable for any liability of any other Seller, or more than a 20% interest agree to do any of the foregoing; (i) cancel, forgive, release, discharge or waive any receivable or any similar Asset or right with respect to the Business, or agree to do any of the foregoing; (j) change any accounting method, policy or practice in the total voting securities of ACE Financial Statements; or (k) terminate, amend or otherwise modify any of its subsidiaries Employee Benefit Plan or any tender offer Other Plan, except for amendments required to comply with applicable Legal Requirements or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariesas requested by Buyer.

Certain Actions. Except In addition, without limiting the generality of Section 5.1, except as expressly contemplated by this Agreement or except as set forth in Part 5.2 of the Company Disclosure Letter, without the prior written consent of Parent, during the period from the date of this Agreement and continuing until the earlier of (x) the termination of this Agreement pursuant to its terms or (y) the Effective Time, the Company shall not do any of the following and shall not permit its subsidiaries to do any of the following: (a) terminate, waive or fail to exercise any stock repurchase rights by which Company Common Stock may be repurchased for a per share price of less than $0.268, accelerate, amend or change the period of exercisability of options to purchase Company Common Stock or restricted Company Common Stock, or reprice any outstanding options to purchase Company Common Stock or authorize cash payments in exchange for any options to purchase Company Common Stock; (b) grant, pay or agree to grant or pay any severance (including change-of-control) or termination pay or other amounts to any Employee, contractor, consultant or agent (except (i) pursuant to written agreements in effect, or policies existing, on the date hereof with respect to this Agreement which the aggregate amount payable thereunder does not exceed $50,000, (ii) as disclosed in Part 3.12 of the Company Disclosure Letter or (iii) as required by Applicable Law), or increase the amount of any such pay or amounts, or adopt any new severance (including change-of-control) plan; (c) transfer or license to any Person or otherwise extend, amend or modify in any material respect any Company IP Rights, other than non-exclusive licenses in the ordinary course of business and consistent with past practice; (d) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock of the transactions contemplated herebyCompany or split, neither ACE nor combine or reclassify any Stockholder nor capital stock of the Company or issue or authorize the issuance of any affiliate thereof nor other securities in respect of, in lieu of or in substitution for any representatives thereof shall capital stock; (e) purchase, redeem or otherwise acquire, directly or indirectly indirectly, any shares of capital stock of the Company or its subsidiaries, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any Employee pursuant to stock option or purchase agreements in effect on the date hereof; (f) issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock or any securities convertible into shares of capital stock of the Company, or subscriptions, rights, warrants or options to acquire any shares of capital stock of the Company or any securities convertible into shares of capital stock of the Company, or enter into other Contracts of any character obligating it to issue any such shares or convertible securities, other than the issuance, delivery and/or sale of shares of Company Common Stock pursuant to the exercise of Company Stock Options outstanding as of the date of this Agreement; (g) cause, permit or propose any amendments to the Company Charter Documents other than the Articles of Amendment; (h) acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any Person; or otherwise acquire or agree to acquire any assets that are material, individually or in the aggregate, to the Business or enter into any material joint ventures, strategic relationships or alliances; (i) solicitsell, initiate lease, license, encumber or knowingly encourage the submission otherwise dispose of any Takeover Proposal (as defined below) properties or (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, assets; provided, howeverthat the foregoing shall not prohibit the Company and its subsidiaries from selling, that ifleasing, at licensing, encumbering or otherwise disposing of equipment in the ordinary course of business consistent with past practice; (j) incur any time prior indebtedness for borrowed money or guarantee any such indebtedness of another Person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Meeting the Board Company or any of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole enter into any “keep well” or other Contract to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing; (k) adopt or amend any employee benefit plan or employee stock purchase or employee stock option plan, or enter into any employment or contractor Contract or collective bargaining Contract (excluding, for the avoidance of doubt only, the provision of offer letters to Employees in the ordinary course of business consistent with past practice with Employees who are terminable “at will” or in accordance with the minimum requirements of Applicable Law), pay any special bonus or special remuneration or offer any retention plans or payments or change-in-control plans or payments to any director, Employee, contractor, consultant or agent, make any loan or provide any advance to any director, Employee, contractor, consultant or agent, or increase the salaries or wage rates or fringe benefits (including rights to severance (including change-of-control) or indemnification) of its directors, Employees, contractors, consultants or agents other than the purchase of products in the ordinary course of business), consistent with past practice, or more than a 20% interest change in any material respect any management policies or procedures; (l) make any material capital expenditures outside of the ordinary course of business or outside of the budget previously provided to Parent; (m) fail to collect account receivables and pay account payables, or to otherwise manage working capital, in the total voting securities ordinary course of ACE business consistent with past practice; (n) enter into, materially modify, amend or terminate any Company Material Contract or waive, release or assign any material rights or claims thereunder; (o) enter into any Contract with regard to the acquisition or licensing of any material Intellectual Property Rights other than licenses, distribution Contracts or other similar Contracts entered into in the ordinary course of business consistent with past practice; (p) materially revalue any of its subsidiaries assets or, except as required by GAAP, make any change in accounting methods, principles or any tender offer or exchange offer that if consummated would result practices; (q) engage in any person beneficially owning 20% action with the intent to directly or indirectly adversely impact any of the Transactions, including with respect to any Takeover Statute; (r) without limiting the foregoing, take any action or fail to take any action reasonably within the Company’s control, that would cause any representation or warranty of the Company to cease to be true and accurate as of the Closing as though then first made; (s) except with respect to Intellectual Property Rights (which are addressed in subsection (t) below), settle any claim, suit, action, arbitration, dispute or other proceeding (or related series thereof) (i) that involves, or would reasonably be expected to have an adverse effect on, any material assets or operations of the Company or (ii) by making one or more payments or transferring other consideration valued in excess of $50,000; (t) settle any class of equity securities of ACE claim, suit, action, arbitration, dispute or other proceeding directly or indirectly relating to any Intellectual Property Rights; or (u) agree in writing or otherwise commit or negotiate to take any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariesthe actions described in Section 5.2(a) through (t) above.

Certain Actions. Except GLN shall: (a) not take any action that would interfere with respect to this Agreement and or be inconsistent with the completion of the transactions contemplated herebyhereunder or would render, neither ACE nor or that reasonably may be expected to render, any Stockholder nor any affiliate thereof nor any representatives thereof shall directly representation or indirectly (i) solicit, initiate or knowingly encourage the submission of any Takeover Proposal (as defined below) or (ii) participate warranty made by GLN in this Agreement untrue in any discussions or negotiations regarding, or furnish to any person any nonpublic information with material respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting Effective Time if then made; (b) use its commercially reasonable efforts to complete the Board of Directors of ACE determines Concurrent Financing; (c) other than as disclosed in good faiththe GLN Disclosure Letter, after consultation with outside counselnot (i) issue or agree to issue any shares, that it is reasonably advisable or securities convertible into or exchangeable or exercisable for, or otherwise evidencing a right to do so in order to comply with its fiduciary duties to stockholders under applicable lawacquire, ACE may, in response to a Takeover Proposal which was not solicited subsequent shares other than pursuant to the date hereofexercise of GLN Warrants; or (ii) redeem, purchase or otherwise acquire any of its outstanding shares or other securities; (xiii) furnish information split, combine or reclassify any of its shares; (iv) adopt a plan of liquidation or resolutions providing for its liquidation, dissolution, merger, consolidation or reorganization; (v) merge, amalgamate, or consolidate into or with any other person or company or enter into any other corporate reorganization, or sell all or any substantial part of its assets to any person or company, or perform any act or enter into any transaction or negotiation which can reasonably be expected to interfere or be inconsistent with the consummation of the Arrangement; or (vi) enter into or modify any contract, agreement, commitment or arrangement with respect to such party any of the foregoing, except as otherwise permitted by this Agreement or agreed to in writing by Exito; (d) not grant to any person pursuant to a customary confidentiality agreement and (y) participate officer or director an increase in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreementcompensation in any form, "Takeover Proposal" means grant any inquiry, proposal or offer from any person general salary increase other than GPI relating in accordance with the requirements of any existing agreements, grant to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other employee any increase in compensation in any form other than the purchase of products routine increases in the ordinary course of business), or make any loan to any officer or director; (e) not, without the prior written consent of Exito, adopt or amend or make any contribution to any bonus, profit sharing, option, deferred compensation, insurance, incentive compensation, other compensation or other similar plan, agreement, trust, fund or arrangements for the benefit of employees, except as is necessary to comply with Applicable Laws or with respect to existing provisions of any such plans, programs, arrangements or agreements; (f) not, other than pursuant to a binding commitment entered into prior to the date hereof and disclosed to Exito: (i) sell, pledge, dispose of or encumber any assets, except for production in the ordinary course of business; (ii) expend or commit to expend more than a 20% interest $50,000 individually or $500,000 in the total voting securities of ACE or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiaries.aggregate with respect to capital expenses;

Certain Actions. (a) Except with respect as expressly permitted or required pursuant to this Agreement and the transactions contemplated hereby, neither ACE nor or any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicit, initiate or knowingly encourage the submission of any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that ifRelated Document, at any time prior to the Meeting first issuance of either the Board of Directors of ACE determines Series A Preferred Shares or the Series C Preferred Shares, the Sentio Parties and their Subsidiaries shall (i) conduct their respective business in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products all material respects in the ordinary course of businessbusiness consistent with past practice, (ii) use commercially reasonable efforts to preserve intact its and its Subsidiaries’ current business organizations, keep available the service of their current officers and employees and preserve their relationship with customers, suppliers, licensors, licensees, advertisers, distributors, Governmental Authorities and others having business dealings with them to the end that their goodwill and ongoing business shall be unimpaired, (iii) not take any action that could cause any representation and warranty contained in Article IV to be untrue in any material respect or cause a covenant to fail to be satisfied in any material respect. (b) Without limiting the generality of Section 5.5(a), at any time prior to the first issuance of either the Series A Preferred Shares or more than the Series C Preferred Shares, the Sentio Parties will not, and will not permit any of their Subsidiaries to, directly or indirectly, do any of the following: (i) agree to any action which would restrict, materially delay or conflict with the rights and preferences of the Series A Preferred Shares or the Series C Preferred Shares; (ii) declare, pay or set aside for payment any Extraordinary Dividend except (for purposes of this clause (b)) as otherwise required for the Company to continue to satisfy the requirements for qualification and taxation as a 20% interest REIT under the Code; (iii) amend, alter or repeal the provisions of the Charter or Bylaws, whether by merger or consolidation or otherwise, so as to adversely affect any right, preference or voting power of the Series A Preferred Shares or the Series C Preferred Shares; (iv) except as permitted in accordance with Section 5.13 hereof, redeem, repurchase or acquire any capital stock of the total voting securities of ACE Sentio Parties or any of its subsidiaries their Subsidiaries; (v) other than in accordance with the provisions of this Agreement or the Related Documents, authorize, issue or reclassify any tender offer capital stock, or exchange offer that debt securities convertible into capital stock, of the Company and the Partnership; (vi) other than in accordance with the provisions of this Agreement or the Related Documents, change the authorized number of members of the Board of the Company or the composition of the Board of the Company; (vii) take any other action specified under Sections 3.2 or 3.3 of the Investor Rights Agreement which would require the consent of the Investor if consummated would result in such action were taken immediately following the first issuance of either the Series A Preferred Shares or the Series C Preferred Shares; or (viii) enter into any person beneficially owning 20% arrangement or more of any class of equity securities of ACE Contract or otherwise agree or commit to take any of its subsidiaries the foregoing actions; provided that, prior to receipt by the Company of the Change of Control Consents, the Sentio Parties and their respective Subsidiaries will have no obligation to refrain from taking any of the actions described in clauses (i), (vi), (vii) (solely with respect to actions specified in Sections 3.2(b), (c), (d), (f), (h), (i), (j) and (l), Sections 3.3(b) through (d) of the Investor Rights Agreement) and (viii) (solely with respect to arrangements, Contracts, agreements or commitments to take any of the actions otherwise set forth in this proviso) of this Section 5.5(b). (c) The Partnership will not, at any time prior to the first issuance of Series B Convertible Preferred Units, amend, alter or repeal the provisions of the Partnership Agreement, whether by merger or consolidation or otherwise, so as to adversely affect any right or preference of the Series B Convertible Preferred Units. (d) The Company will not, at any time prior to the first issuance of the Series C Preferred Shares, whether by merger, consolidation, business combinationamendment to the Charter, sale operation of substantially all assetslaw or otherwise, recapitalizationeffect any stock split, liquidation, dissolution recapitalization or similar transaction involving ACE adjustment in respect of the Series A Preferred Shares unless simultaneously in connection therewith the Company effects a similar adjustment to the terms of the Series C Preferred Shares. (e) The Sentio Parties will not, at any time prior to the first issuance of Securities, make or rescind any material Tax election (unless required by Law or necessary to preserve the Company’s status as a REIT or the status of any of its subsidiariesSubsidiary as a partnership for federal tax purposes or a qualified REIT subsidiary or a taxable REIT subsidiary under the applicable provisions of Section 856 of the Code, as the case may be), settle or compromise any material Tax liability, change an annual accounting period, adopt or change any material accounting method with respect to Taxes, enter into any closing agreement, settle or compromise any material proceeding with respect to any material Tax claim or assessment, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment, enter into, amend or modify any material Tax Protection Agreement, or take any action that would, or could reasonably be expected to, violate any material Tax Protection Agreement or otherwise give rise to any material liability of such Sentio Party or any Subsidiary thereof with respect thereto, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax.

Certain Actions. Except as contemplated by this Agreement, TARGET shall not have, between the Agreement Date and the Effective Time, directly or indirectly, done or have proposed or agreed to do any of the following without prior consultation with PARENT and receipt of PARENT's prior written consent, which consent shall not be unreasonably withheld: (a) (i) amend or otherwise change its Certificate of Incorporation or Bylaws (other than amendments which are not material to PARENT); (ii) issue, sell, pledge, dispose of, or encumber, or, authorize the issuance, sale, pledge, disposition, or encumbrance of any shares of its capital stock of any class or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest, of it, other than the issuance of TARGET capital stock upon (x) exercise of (and in accordance with the terms of) any currently outstanding options or currently outstanding warrants for capital stock of TARGET or (y) conversion or exchange of (and in accordance with the terms of) any TARGET capital stock outstanding as of the Agreement Date; (iii) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; or (iv) declare, set aside, make or pay any dividend or other distribution, whether payable in cash, stock, property or otherwise, with respect to any of its capital stock; acquire (including, without limitation, for cash or shares of stock, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets of any other Person in excess of $25,000; (b) (i) create, incur or assume any indebtedness for borrowed money, whether or not in the ordinary course of business, or issue any debt securities in excess of $25,000; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person; (iii) make any loans or advances to any other Person other than to employees in the ordinary course of business consistent with past practice; or (iv) make or commit to make any capital expenditures in excess of $25,000, other than those proposed to be made in any financial budgets (c) not in the ordinary course of business: (i) issue any debt securities in excess of $25,000; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person; (iii) make any loans or advances to any other Person other than to employees in the ordinary course of business consistent with past practice; or (iv) make or commit to make any capital expenditures in excess of $25,000, other than those proposed to be made in any financial budgets delivered to PARENT prior to the Agreement Date; (i) sell, pledge, dispose of or encumber, or authorize the sale, pledge, disposition or encumbrance of any of its properties or assets, tangible or intangible, except in each case in the ordinary course of business; (ii) enter into any new Contract other than in the ordinary course of business, consistent with past practice; or (iii) amend, terminate or cancel any material contract or fail to perform in any material respect any of its obligations thereunder; (i) change any accounting policies or procedures, change any annual accounting period or make any change in any accounting methods or systems of internal accounting controls, except as may be appropriate to conform to changes in GAAP; (ii) revalue any of its assets, including writing down the value of any assets or writing off any notes or accounts receivable; (iii) make or change any Tax election, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment, surrender any right to claim refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other action or omit to take any action, if any such action or omission would have the effect of increasing the Tax liability of PARENT or TARGET; (f) pay, discharge or satisfy any Liens, claims, debts, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of due and payable liabilities reflected or reserved against in the TARGET Financial Statements, as appropriate, or liabilities incurred after the date of the Most Recent Balance Sheet in the ordinary course of business and consistent with past practice; (g) increase or decrease prices charged to its customers, other than in the ordinary course of business consistent with past practice, or fail to use all commercially reasonable efforts to enforce any Contract or other agreement with any customer or supplier, collect its accounts receivable, or pay its accounts payable, in each case in the ordinary course of business consistent with past practice; (h) except as contemplated in other provisions of this Agreement and Agreement, enter into any contract or transaction with or for the transactions contemplated herebybenefit of any of its directors, neither ACE nor officers, stockholders, Affiliates or Associates or any Stockholder nor entity in which any affiliate thereof nor such director, officer, stockholder, Affiliate or Associate, or their respective Affiliates or Associates, has a direct or indirect interest, whether or not in the ordinary course of business; or agree, in writing or otherwise, to take or authorize any representatives thereof shall directly of the foregoing actions or indirectly any action which would make any representation or warranty in Article IV hereof untrue or incorrect in any respect; or (i) (i) solicit, initiate or knowingly initiate, encourage the initiation or submission by others of any Takeover Proposal (as defined below) or Acquisition Proposal; (ii) enter into or participate in any discussions or negotiations regardingwith, or respond to solicitations relating to, furnish to any person Person any nonpublic information with respect to, or take any other action designed to encourage or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Takeover Acquisition Proposal; or (iii) enter into any Contract, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was agreement or commitment (whether or not solicited subsequent to the date hereof, (xbinding) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Acquisition Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of business), or more than a 20% interest in the total voting securities of ACE or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiaries.

Certain Actions. Except with respect Without the prior written consent of each of FF-ITP and, in the case of subparagraphs (a), (b), (d), (e), (f), (m), (n), (o), and (p), the consent of the holders of a majority of the outstanding shares of Series B Preferred Stock (other than shares held by a Regulated Holder), which consent may be withheld for any reason, the Company will not, and will not permit any Subsidiary to: (a) permit to occur any amendment, alteration, or modification of the bylaws of the Company, as constituted on the date of this Agreement, the effect of which, in the judgment of FF-ITP and the holders of a majority of the outstanding shares of Series B Preferred Stock (other than shares held by a Regulated Holder), would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of the Company under this Agreement, the Warrants, the Certificate or the Stockholder Agreement or permit to occur any amendment, alteration, or modification of the other charter or organizational documents of the Company, as constituted on the date of this Agreement except to the extent necessary to comply with Section 4.04(j) or 4.10; (b) except as otherwise permitted in the Certificate or those Stock Repurchase Agreements dated May 30, 1997, between the Company and each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, or as required by the transactions contemplated herebyStockholder Agreement or the Loan Warrant Agreement, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicitdeclare or make any dividends or distributions of its cash, initiate stock property, or knowingly encourage assets or redeem, retire, purchase, or otherwise acquire, directly or indirectly, any of the submission Capital Stock or capital stock or securities of any Takeover Proposal (as defined below) Affiliate or any Subsidiary of the Company, or any securities convertible or exchangeable into Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company or otherwise make any distribution on account of the purchase, repurchase, redemption, put, call or other retirement of any shares of Capital Stock of the Company or any Subsidiary thereof or of any warrant, option or other right to acquire such shares, or (ii) participate in pay any discussions professional consulting or negotiations regarding, management fees or furnish any other payments to any person shareholders of Parent or any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, Subsidiary; provided, however, that if, at any time prior the Company shall be permitted as exceptions to the Meeting preceding provisions of this clause (b): to declare and make payments of (A) dividends in cash from Subsidiaries of the Board Company to the Company to the extent necessary to permit the Company or its Subsidiaries to pay amounts due and payable under the Loan Agreement, and (B) dividends on the Preferred Stock as provided in the Certificate; (c) effect any sale, lease, assignment, transfer, or other conveyance of Directors any material portion of ACE determines the assets or operations or the revenue or income generating capacity of the Company (other than inventory in the ordinary course of business and other assets reasonably and in good faith, after consultation with outside counsel, that it is reasonably advisable faith determined by the Company to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent be obsolete or no longer necessary to the date hereofbusiness of the Company), or to take any such action that has the effect of any of the foregoing; (xd) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes except for issuances of stock permitted by this Agreement, "Takeover Proposal" means the Permitted Stock, and the mergers permitted by the Loan Agreement or pursuant to the express terms of this Agreement or the Stockholder Agreement, issue or sell, or otherwise dispose of any inquiryCapital Stock (including the Series A Preferred Stock) or Capital Stock of any Subsidiary, proposal dissolve or offer from liquidate, or effect any person consolidation or merger involving the Company or any Subsidiary or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock of the Company or of any Subsidiary; (e) issue any Capital Stock unless the holder of such Capital Stock either (i) has become a party to the Stockholder Agreement, or (ii) owns, after such issuance, less than GPI relating three percent (3%) of the Company's Common Stock, assuming full exercise or conversion of all outstanding securities exercisable for or convertible into Common Stock. (f) enter into any business that the Company or any Subsidiary is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise except for businesses and acquisitions permitted by the Loan Agreement); (g) except for Permitted Stock, enter into any transaction or transactions with any director, officer, employee, or stockholder of the Company, or any Affiliate or relative of the foregoing except upon terms that, in the opinion of the FF-ITP, are fair and reasonable and that are, in any event, at least as favorable as would result in a comparable arm's-length transaction with a Person not a director, officer, employee, shareholder, or Affiliate of the Company or any Affiliate or related party of the foregoing, or advance any monies to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiariessuch Persons, taken as a whole (other than the purchase of products except for travel advances in the ordinary course of business; (h) increase the amount of remuneration paid to officers under the employment agreements disclosed with respect to Section 3.01(k) of this Agreement (the "Employment Agreements"); (i) modify, amend, terminate or waive any material provision of the Employment Agreements; (j) allow the aggregate par value of the Capital Stock subject to the Warrants from time to time to exceed the price payable upon exercise of the Warrants, as adjusted from time to time; (k) fail to achieve $30,000,000 in net revenue and $1,500,000 in EBITDA for the year ending one year after the Original Closing Date; $60,000,000 in net revenue and $3,500,000 in EBITDA for the year ending two years after the Original Closing Date; and $90,000,000 in net revenue and $5,500,000 in EBITDA for the year ending three years after the Original Closing Date; (l) fail to comply, in all material respects, with all applicable statutes, regulations, and orders of the United States, domestic and foreign states, and municipalities, agencies, and instrumentalities of the foregoing applicable to the Company; (m) fail to file all required tax returns, reports, and requests for refunds on a timely basis or pay on a timely basis all taxes imposed on either it, or more than a 20% interest in the total voting securities of ACE or upon any of its subsidiaries assets, income or franchises; provided, however, that neither the Company nor any Subsidiary shall be required to pay or discharge any tax, levy, assessment, or governmental charge that is being contested in good faith by appropriate proceedings diligently pursued, and for which adequate reserves in accordance with generally accepted accounting principles, consistently applied, have been establis-hed; (n) authorize or issue stock to ▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or any tender offer Affiliate or exchange offer that if consummated would result Related Party of the foregoing; (o) fail to keep books and records of account in which full, true, and correct entries will be made of all dealings and transactions in relation to its business and affairs in accordance with generally accepted accounting principles applied on a consistent basis; (p) create or authorize any person beneficially owning 20% class or more series of capital stock ranking prior to or pari passu with the Series A Preferred Stock with respect of the payment of dividends or the distribution of assets upon a liquidation, or create or authorize any rights, options or warrants exercisable for, or securities convertible into or exchangeable for, shares of any such class or series of capital stock; (q) except for Permitted Stock, authorize the issuance of the Company's equity securities at a price per share of ACE less than their Fair Market Value; or (r) obligate itself or otherwise agree to take, permit or enter into any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariesthe events described in subsections (a) through (q) above.

Certain Actions. Except with respect to this Agreement Without the prior written consent of the Holders, which consent may be withheld in the sole discretion of the Holders, the Company will not, and the transactions contemplated herebyCompany will not permit any of its Subsidiaries to: (a) permit to occur any amendment, neither ACE nor alteration or modification of its Articles of Incorporation, Bylaws or other charter or organizational documents, as constituted on the date of this Agreement, the effect of which, in the reasonable credit judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of Company under this Agreement, the Warrants, or the Shareholder Agreement; (b) declare or make any Stockholder nor any affiliate thereof nor any representatives thereof shall directly dividends or indirectly distributions of its cash, stock, property, or assets (other than (i) solicitdividends and distributions which are permitted pursuant to the terms of the Note Agreement and (ii) regularly scheduled dividends on the ▇▇▇▇▇▇▇▇ Preferred Stock, initiate subject to the restrictions set forth in Section 4.04 of the Shareholder Agreement) or knowingly encourage the submission redeem, retire, purchase, or otherwise acquire, directly or indirectly, any of its Capital Stock or Capital Stock or securities of any Takeover Proposal Affiliate of the Company, or any securities convertible or exchangeable into Capital Stock or Capital Stock or securities of any Affiliate of the Company; (as defined belowc) effect any sale, lease, assignment, transfer, or other conveyance of any portion of the assets or operations or the revenue or income generating capacity of the Company or any Subsidiary (other than sales, leases, assignments, transfers and other conveyances which are permitted pursuant to the terms of the Note Agreement) or to take any such action that has the effect of the foregoing; (d) except for Permitted Stock or pursuant to this Agreement, the Shareholder Agreement, the Note Agreement or the Pecks Securities Purchase Agreement, issue or sell, or otherwise dispose of any Capital Stock, or dissolve or liquidate (except that any Inactive Subsidiary may be dissolved or liquidated), or effect any consolidation or merger involving the Company or any Subsidiary (except that any Subsidiary of Precise may be merged with and into (i) Precise, provided that Precise is the surviving corporation or (ii) participate any other Subsidiary of Precise) or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock; (e) enter into any business that the Company or Precise is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise); (f) except for Permitted Stock or as otherwise permitted in the Note Agreement, enter into any transaction or transactions with any director, officer, or shareholder of the Company or the Shareholder, or any Affiliate or relative of the foregoing except upon terms that are disclosed in writing to the Holders and are (i) in the opinion of the Holders, fair and reasonable and (ii) in any discussions or negotiations regardingevent, at least as favorable as would result in a comparable arm's-length transaction with a Person not a director, officer, employee, shareholder, or furnish Affiliate of the Company or the Shareholder or any Affiliate or related party of the foregoing, or advance any monies to any person any nonpublic information with respect tosuch Persons, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products except for travel advances in the ordinary course of business); (g) increase the amount of benefits payable under any benefit plan in the aggregate, or more than a 20% interest in increase the total voting securities aggregate amount of ACE professional, management, consulting or similar fees paid or accrued by the Company or its Subsidiaries during any fiscal year to or for the direct or indirect benefit of any of its subsidiaries officers, directors, or security holders or Affiliates beyond the amounts permitted under the Note Agreement; (h) acquire any tender offer debt or exchange offer that if consummated would result equity interest in any person beneficially owning 20% Person or more establish or acquire a Subsidiary (other than any Subsidiary existing on the date hereof) or, except as otherwise permitted under the Note Agreement, make any additional capital contribution or purchase any additional equity in any Subsidiary or, except as otherwise permitted under the Note Agreement, make any advances or loans to any Subsidiary or transfer any technology or assets to any Subsidiary; (i) allow the aggregate par value of any class the Capital Stock subject to the Warrants from time to time to exceed the price payable on exercise of equity securities of ACE the Warrants, as adjusted from time to time; or (j) obligate itself or otherwise agree to take, permit or enter into any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariesthe events described in subsections (a) through (i) above.

Certain Actions. Except with respect to Unless otherwise expressly provided herein, whenever any action is required under this Agreement and by: (a) the transactions contemplated hereby▇▇▇▇ Shareholders, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof it shall directly be by the affirmative vote of the holders representing more than fifty percent (50%) of the total number of shares of Common Stock on a Diluted Basis then held by the ▇▇▇▇ Shareholders as a group, or indirectly as otherwise agreed in writing by the ▇▇▇▇ Shareholders as a group; (ib) solicitthe TPG Shareholders, initiate it shall be by the affirmative vote of the holders representing more than fifty percent (50%) of the total number of shares of Common Stock on a Diluted Basis then held by the TPG Shareholders as a group, or knowingly encourage as otherwise agreed in writing by the submission TPG Shareholders as a group; (c) the LG Shareholders, it shall be by the affirmative vote of any Takeover Proposal the holders representing more than fifty percent (50%) of the total number of shares of Common Stock on a Diluted Basis then held by the LG Shareholders as defined belowa group, or as otherwise agreed in writing by the LG Shareholders as a group; or (d) the DG Shareholders, it shall be by the affirmative vote of the holders representing more than fifty percent (50%) of the total number of shares of Common Stock on a Diluted Basis then held by the DG Shareholders as a group, or (ii) participate as otherwise agreed by the DG Shareholders as a group. The Shareholders hereby agree, notwithstanding anything to the contrary in any discussions other agreement or negotiations regardingat law or in equity, that when any Shareholder takes any action under this Agreement or furnish pursuant to any person any nonpublic information with respect toapplicable law to give or withhold its consent in its capacity as a Shareholder, such Shareholder shall have no duty (fiduciary or take any other action designed or reasonably likely other) to facilitate any inquiries consider the interests of the Company or the making of any proposal that constitutes any Takeover Proposalother Shareholders, may act exclusively in its own interest and shall have only the duty to act in good faith; provided, however, that if, at any time prior to the Meeting foregoing shall in no way affect the Board obligations of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order the parties hereto to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes provisions of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of business), or more than a 20% interest in the total voting securities of ACE or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiaries.

Certain Actions. Except as contemplated by this Agreement, PARENT shall not have, between the Agreement Date and the Effective Time, directly or indirectly, done or have proposed or agreed to do any of the following without prior consultation with TARGET and receipt of TARGET's prior written consent, which consent shall not be unreasonably withheld: (a) (i) amend or otherwise change its Certificate of Incorporation or Bylaws (other than amendments which are not material to TARGET); (ii) issue, sell, pledge, dispose of, or encumber, or, authorize the issuance, sale, pledge, disposition, or encumbrance of any shares of its capital stock of any class or any options, warrants, convertible or exchangeable securities or other rights of any kind to acquire any shares of such capital stock, or any other ownership interest, of it, other than the issuance of PARENT capital stock upon (x) exercise of (and in accordance with the terms of) any currently outstanding options or currently outstanding warrants for capital stock of PARENT or (y) conversion or exchange of (and in accordance with the terms of) any PARENT capital stock outstanding as of the Agreement Date; (iii) reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock; or (iv) declare, set aside, make or pay any dividend or other distribution, whether payable in cash, stock, property or otherwise, with respect to any of its capital stock; acquire (including, without limitation, for cash or shares of stock, by merger, consolidation or acquisition of stock or assets) any interest in any corporation, partnership or other business organization or division thereof or any assets, or make any investment either by purchase of stock or securities, contributions of capital or property transfer, or purchase any property or assets of any other Person in excess of $25,000; (b) (i) create, incur or assume any indebtedness for borrowed money, whether or not in the ordinary course of business, or issue any debt securities in excess of $25,000; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person; (iii) make any loans or advances to any other Person other than to employees in the ordinary course of business consistent with past practice; or (iv) make or commit to make any capital expenditures in excess of $25,000, other than those proposed to be made in any financial budgets (c) not in the ordinary course of business: (i) issue any debt securities in excess of $25,000; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for, the obligations of any Person; (iii) make any loans or advances to any other Person other than to employees in the ordinary course of business consistent with past practice; or (iv) make or commit to make any capital expenditures in excess of $25,000, other than those proposed to be made in any financial budgets delivered to TARGET prior to the Agreement Date; (i) sell, pledge, dispose of or encumber, or authorize the sale, pledge, disposition or encumbrance of any of its properties or assets, tangible or intangible, except in each case in the ordinary course of business; (ii) enter into any new Contract other than in the ordinary course of business, consistent with past practice; or (iii) amend, terminate or cancel any material contract or fail to perform in any material respect any of its obligations thereunder; (i) change any accounting policies or procedures, change any annual accounting period or make any change in any accounting methods or systems of internal accounting controls, except as may be appropriate to conform to changes in GAAP; (ii) revalue any of its assets, including writing down the value of any assets or writing off any notes or accounts receivable; (iii) make or change any Tax election, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment, surrender any right to claim refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or take any other action or omit to take any action, if any such action or omission would have the effect of increasing the Tax liability of TARGET or PARENT; (f) pay, discharge or satisfy any Liens, claims, debts, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of due and payable liabilities reflected or reserved against in the PARENT Financial Statements, as appropriate, or liabilities incurred after the date of the Most Recent Balance Sheet in the ordinary course of business and consistent with past practice; (g) increase or decrease prices charged to its customers, other than in the ordinary course of business consistent with past practice, or fail to use all commercially reasonable efforts to enforce any Contract or other agreement with any customer or supplier, collect its accounts receivable, or pay its accounts payable, in each case in the ordinary course of business consistent with past practice; (h) except as contemplated in other provisions of this Agreement and Agreement, enter into any contract or transaction with or for the transactions contemplated herebybenefit of any of its directors, neither ACE nor officers, stockholders, Affiliates or Associates or any Stockholder nor entity in which any affiliate thereof nor such director, officer, stockholder, Affiliate or Associate, or their respective Affiliates or Associates, has a direct or indirect interest, whether or not in the ordinary course of business; or agree, in writing or otherwise, to take or authorize any representatives thereof shall directly of the foregoing actions or indirectly any action which would make any representation or warranty in Article IV hereof untrue or incorrect in any respect; or (i) (i) solicit, initiate or knowingly initiate, encourage the initiation or submission by others of any Takeover Proposal (as defined below) or Acquisition Proposal; (ii) enter into or participate in any discussions or negotiations regardingwith, or respond to solicitations relating to, furnish to any person Person any nonpublic information with respect to, or take any other action designed to encourage or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Takeover Acquisition Proposal; or (iii) enter into any Contract, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was agreement or commitment (whether or not solicited subsequent to the date hereof, (xbinding) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Acquisition Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of business), or more than a 20% interest in the total voting securities of ACE or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiaries.

Certain Actions. Except with respect to (x) as expressly contemplated by this Agreement and the transactions contemplated herebyAgreement, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof (y) as approved by Co-Investor Member (which approval shall directly not be unreasonably withheld, conditioned or indirectly (i) solicit, initiate or knowingly encourage the submission of any Takeover Proposal (as defined belowdelayed) or (iiz) participate in as required by applicable Law or the regulations or requirements of any discussions stock exchange or negotiations regardingregulatory organization applicable to the Company, or furnish to any person any nonpublic information with respect at all times during the Interim Period, the Company shall, and Intel Member and its Affiliates shall cause the Company to, or take any other action designed or reasonably likely (a) use its respective commercially reasonable efforts to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior maintain its existence in good standing pursuant to applicable Law; (b) subject to the Meeting the Board of Directors of ACE determines restrictions and exceptions elsewhere in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or conduct its subsidiaries, taken as a whole (other than the purchase of products business and operations in the ordinary course of business; and (c) use its respective commercially reasonable efforts, consistent with its operations in the ordinary course of business, to (i) preserve intact its material assets, properties (as applicable), Contracts or more than a 20% interest in other legally binding understandings, licenses and business organizations, (ii) keep available the total voting securities services of ACE its current officers and key employees and (iii) preserve its current relationships and goodwill with customers, suppliers, partners, platform providers, manufacturers, distributors, lessors, licensors, licensees, creditors, contractors and such other Persons with which the Company, Intel Member or any of its subsidiaries Affiliates has business relations. Without limiting the generality of the foregoing, except (x) as expressly contemplated by this Agreement, (y) as approved by Co-Investor Member (which approval shall not be unreasonably withheld, conditioned or delayed) or (z) as required by applicable Law or the regulations or requirements of any stock exchange or regulatory organization applicable to the Company, at all times during the Interim Period, the Company shall not: a. with respect to the Company, issue, sell, assign, transfer, pledge, or grant new Units or redeem or repurchase any outstanding Units in the Company or any tender offer securities or rights convertible into, exchange offer that if consummated would result or exercisable for or evidencing the right to subscribe for any Units or rights, warrants or options to purchase any Units, other than pursuant to this Agreement; b. make any material change in its financial accounting policies, except as required by Law, GAAP or any person beneficially owning 20% applicable accounting standards or more of the SEC; c. (i) declare, set aside for payment or pay any class of equity dividend on, or make any other distribution in respect of, any Units or other securities of ACE the Company, other than to the extent paid in full prior to the Closing or (ii) adjust, split, combine, subdivide or reclassify any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiaries.Units;

Certain Actions. Except with respect (a) During the period commencing on the Closing Date and ending on the fifth anniversary of the Closing Date, and subject to this Agreement Section 5(b), the Designated Shareholders will not, and will cause each of their Designated Permitted Transferees not to, without the transactions contemplated hereby, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly approval of a majority of the Disinterested Directors: (i) publicly solicit, initiate or knowingly encourage encourage, any offer or proposal for, or any indication of interest in, a merger or other business combination involving the submission Company or any subsidiary of the Company or the acquisition of securities representing at least 30% of the voting power of the Company, or a substantial portion of the assets of the Company or any Takeover Proposal subsidiary of the Company (an "ACQUISITION PROPOSAL"); (ii) except as otherwise provided in Section 1, "solicit", or become a "participant" in any "solicitation" of, any "proxy" (as such terms are defined in Regulation 14A under the Exchange Act) from any holder of Voting Securities in connection with any vote on any matter, or agree or announce their intention to vote with any Person undertaking a "solicitation"; (iii) form, join or in any way participate in a group with respect to any Voting Securities; PROVIDED that this clause 5(a)(iii) shall not prohibit any such arrangement solely among the WCAS Purchasers; or (iv) advise or assist any other Person in connection with any of the foregoing or publicly disclose any intention, plan or arrangement inconsistent with any of the foregoing. (b) In the event that a Hostile Approach (as defined below) or is made by any Person (iia "HOSTILE PERSON"), the restrictions set forth in Section 5(a) participate in any discussions or negotiations regardingshall be suspended upon the earliest of (i) the fifth business day following such Hostile Approach, or furnish to any person any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting unless the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect shall have publicly announced their opposition to such party to Hostile Approach, including, where applicable, by recommending that stockholders of the Company vote against, and do not furnish any person pursuant to a customary confidentiality agreement and (y) participate proxy, consent or authorization requested by such Hostile Person in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreementconnection with, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of business), or more than a 20% interest in the total voting securities of ACE or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiaries.such

Certain Actions. Except with respect Without the prior written consent of the Holders, --------------- which consent may be withheld in the sole discretion of the Holders, the Company will not, and will not permit any Subsidiary to: (a) permit to occur any amendment, alteration, or modification of the Bylaws of the Company, as constituted on the date of this Agreement, the effect of which, in the sole judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of the Company under this Agreement, the Warrants, the Certificate or the Shareholder Agreement or permit to occur any amendment, alteration, or modification of the Restated Articles of Incorporation or other charter or organizational documents of the Company, as constituted on the date of this Agreement and except to the transactions contemplated herebyextent necessary to comply with Section 4.04(j) or 4.10; --------------- ---- (b) except as otherwise permitted in the Certificate or required by the Shareholder Agreement, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicitdeclare or make any dividends or distributions of its cash, initiate stock, property, or knowingly encourage assets or redeem, retire, purchase, or otherwise acquire, directly or indirectly, any of the submission Capital Stock or capital stock or securities of any Takeover Proposal Affiliate or any Subsidiary of the Company, or any securities convertible or exchangeable into Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company or otherwise make any distribution on account of the purchase, repurchase, redemption, put, call or other retirement of any shares of Capital Stock of the Company or any Subsidiary thereof or of any warrant, option or other right to acquire such shares (except pursuant to Preferred Stock and Warrant Purchase Agreement - Page 25 ---------------------------------------------- the Purchase Documents or the Certificate) (each as defined below) in Section 11.1 of the Note Agreement), or (ii) participate make any payment or distribution on account of any Indebtedness of the Company which is subordinate to the Senior Subordinated Notes (except that Subsidiaries may make distributions to the Company), and (iii) except as otherwise provided for in the Note Agreement, pay any discussions professional consulting or negotiations regarding, management fees or furnish any other payments to any person shareholders of Parent or any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, Subsidiary; provided, however, that if, at any time prior the -------- ------- following shall be permitted as exceptions to the Meeting preceding provisions of this clause (b): declare and make payments of (A) dividends in cash from Subsidiaries of the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent Company to the date hereofCompany to the extent necessary to permit the Company or its Subsidiaries to pay the Senior Subordinated Obligations (as defined in Section 11.1 of the Note Agreement) due and payable from the Company or its Subsidiaries to each Purchaser, (xB) furnish information with respect to such party to any person dividends or stock repurchases permitted by the Senior Loan Agreement (as defined in Section 11.1 of the Note Agreement), and (C) dividends on the Preferred Stock as provided in the Certificate and payments made pursuant to a customary confidentiality agreement and the Purchase Documents (yas defined in Section 11.1 of the Note Agreement); (c) participate in discussions and negotiations regarding such Takeover Proposal. For purposes effect any sale, lease, assignment, transfer, or other conveyance of this Agreement, "Takeover Proposal" means any inquiry, proposal material portion of the assets or offer from any person other than GPI relating to any direct operations or indirect acquisition the revenue or purchase income generating capacity of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole the Company (other than inventory in the ordinary course of business and other assets reasonably and in good faith determined by the Company to be obsolete or no longer necessary to the business of the Company and other asset dispositions permitted by the Senior Loan Agreement including the Asset Transfer (as defined in the Senior Loan Agreement)) or to take any such action that has the effect of any of the foregoing; (d) except for issuances of stock permitted by the Senior Loan Agreement, the Permitted Stock, the Acquisition Merger, the Subsidiary Mergers (each as defined in Section 11.1 of the Note Agreement) and the other mergers permitted by the Senior Loan Agreement or pursuant to the express terms of this Agreement or the Shareholder Agreement, issue or sell, or otherwise dispose of any Capital Stock (including the Series B Preferred Stock) or Capital Stock of any Subsidiary, dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock of the Company or of any Subsidiary; (e) enter into any business that the Company or any Subsidiary is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise except for businesses and acquisitions permitted by the Senior Loan Agreement); (f) except for the employment agreements disclosed in Schedule 7.10 to the Note Agreement and except for Permitted Stock, enter into any transaction or transactions with any director, officer, employee, or shareholder of products the Company, or any Affiliate or relative of the foregoing except upon terms that, in the opinion of the Holders, are fair and reasonable and that are, in any event, at least as favorable as would result in a comparable arm's-length transaction with a Person not a director, officer, employee, shareholder, or Preferred Stock and Warrant Purchase Agreement - Page 26 ---------------------------------------------- Affiliate of the Company or any Affiliate or related party of the foregoing, or advance any monies to any such Persons, except for travel advances in the ordinary course of business; (g) except for the employment agreements disclosed in Schedule 7.10 to the Note Agreement, increase the amount of remuneration permitted under Section 7.10 of the Note Agreement; (h) except for (i) acquisitions permitted under the Note Agreement and Section 9.2 of the Senior Loan Agreement, (ii) Permitted Indebtedness (as defined in Section 11.1 of the Note Agreement), and (iii) other capital contributions, permitted purchases, advances and loans permitted by the Senior Loan Agreement, acquire any debt or more than a 20% equity interest in any Person or establish or acquire a Subsidiary or make any additional capital contribution or purchase any additional equity in any Subsidiary or make any advances or loans to any Subsidiary or transfer any technology or assets to any Subsidiary; (i) except for the total voting securities employment agreements disclosed in Schedule 7.10 of ACE the Note Agreement, modify, amend, terminate or waive any material provision of the Employment Agreements; (j) allow the aggregate par value of the Capital Stock subject to the Warrants from time to time to exceed the price payable upon exercise of the Warrants, as adjusted from time to time; or (k) obligate itself or otherwise agree to take, permit or enter into any of its subsidiaries or any tender offer or exchange offer that if consummated would result the events described in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiaries.subsections (a) through (j) above. --------------- ---

Certain Actions. Except with respect Company not to this Agreement and take any of the transactions contemplated hereby, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly following actions: (i1) solicit, initiate or knowingly encourage the submission Dispose of any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person assets other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of business); (2) Mortgage, pledge or subject to liens or other encumbrances any assets or properties of Company; (3) Purchase or commit to purchase any capital asset for a price exceeding $100,000.00; (4) Except for planned or normal increases in the ordinary course of business with respect to non-officer employees, increase (or announce any increase of) any salaries, wages or employee benefits or hire, commit to hire or terminate any employee; (5) Amend its charter or bylaws; (6) Issue, sell or repurchase any of its capital stock or make any change in its issued and outstanding capital stock or issue any warrant, option or other right to purchase shares of its capital stock or any security convertible into its capital stock, or more than redeem, purchase or otherwise acquire any shares of its capital stock, or declare any dividends or make any other distribution with respect to its stock; (7) Incur, assume or guarantee any obligation or liability for borrowed money, or exchange, refund or renew any outstanding indebtedness in such a 20% manner as to reduce the principal amount of such indebtedness and increase the interest rate or balance outstanding; (8) Cancel any debts owed to Company; (9) Amend or terminate any material agreement, including any employee benefit plan or any insurance policy, in force on the date hereof; (10) Solicit or entertain any offer for, or sell or agree to sell, or participate in any business combination with respect to, any assets of Company (except Inventories sold in the total voting securities ordinary course of ACE business consistent with past practices) or any of the Shares; (11) Make any changes in its subsidiaries accounting methods, principles or practices, except as may be required by GAAP; (12) Enter into any contract or agreement of the type described in SECTION 7.P.; or (13) Do any act, omit to do any act or permit any act within Seller's or Company's control which will cause a breach of any representation, warranty, covenant or agreement contained in this Agreement or any tender offer or exchange offer that if consummated would result obligations contained in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariescontract.

Certain Actions. Except Without the prior written consent of the Holders, which consent may be withheld in the sole discretion of the Holders: (a) the Company shall not permit to occur any (i) amendment, alteration, or modification of the Bylaws of the Company, as constituted on the date of this Agreement, the effect of which, in the sole judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of the Company under this Agreement, the Warrants, the Stockholders’ Agreement or the Registration Rights Agreement or (ii) amendment, alteration, or modification of the Certificate of Incorporation, the Certificate of Designations, other charter or organizational documents of the Company, as constituted on the date of this Agreement or authorize or designate (through board of directors designation or otherwise) any class or series of any Capital Stock which rank on parity with respect or senior to the Series D Convertible Preferred Stock upon payment of dividends, liquidation or other distributions except to the extent necessary to comply with Sections 4.04(k) and 4.10 of this Agreement; (b) the Company shall not, and shall not permit any Subsidiary to, declare or make any dividends or distributions of its cash, stock, property, or assets (other than general dividends and distributions to its shareholders in instances in which the Dilution Fee is applicable and has been indefeasibly paid to the Holders (e.g., the Holder is not obligated to disgorge the payment or turn over the payment to the senior lender of the Company or any of its Subsidiaries) and stock dividends to which the adjustments provided for in Section 2.12 of this Agreement have been made) or redeem, retire, purchase, or otherwise acquire, directly or indirectly, any of the Capital Stock or capital stock or securities of any Affiliate of the Company, or any securities convertible or exchangeable into Capital Stock or capital stock or securities of any Affiliate of the Company, except that (i) any Subsidiary shall be permitted to do any of the foregoing for the benefit of the Company or any other Subsidiary and (ii) the Company shall be permitted to repurchase shares of Capital Stock from employees upon termination of employment; provided, that, such repurchases are approved by the Board of Directors and; provided further, that, such repurchases shall not exceed $500,000 cumulatively in the aggregate during the term of this Agreement; (c) the Company shall not issue or sell, or otherwise dispose of or permit any Subsidiary to issue, sell or dispose of, any capital stock or securities of any Subsidiary, or dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock (unless the adjustments provided for by Section 2.12 of this Agreement have been made); except that the Company shall be permitted to issue and sell Permitted Stock; (d) the Company shall not, except for the Registration Rights Agreement, become a party to, or otherwise be bound by, any agreement obligating it to register any of its Capital Stock; (e) the Company shall not, and shall not permit any Subsidiary to, enter into any business which is not substantially related to that which the Company or any Subsidiary, as the case may be, is conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise); (f) the Company shall not, and shall not permit any Subsidiary to, except for Permitted Stock, the Lease, the Stockholders’ Agreement, the Registration Rights Agreement and the Management Agreement and as listed on Schedule 7.6 of the Note Agreement as in effect on the date hereof, enter into any transaction or transactions contemplated herebywith any director, officer, employee, or shareholder of the Company or Subsidiary, as the case may be, or any Affiliate or relative of the foregoing, except upon terms that are disclosed in advance and approved by a majority of the outside directors of the Company, and that are, in any event, at least as favorable as would result in a comparable arm’s-length transaction with a Person not a director, officer, employee, shareholder, or Affiliate of the Company or Subsidiary, as the case may be, or any Affiliate or related party of the foregoing, or advance any monies to any such Persons, except for travel advances in the ordinary course of business (provided that nothing herein shall prevent the Company from providing insurance and similar benefits to all its directors) and except for transactions between the Company and any of its Subsidiaries or between any of the Company’s Subsidiaries (provided that each Subsidiary in such transaction is a guarantor of the obligations of the Company to the Holders and any sale of the capital stock or substantially all of the assets of such Subsidiary would constitute an Event of Default (as defined in the Note Agreement); provided, however, that neither ACE the Company nor any Stockholder nor of its Subsidiaries shall be permitted to make any affiliate thereof nor any representatives thereof shall directly or indirectly payment under the Management Agreement upon the occurrence and during the continuation of either (i) solicit, initiate an Event of Default under Section 8.1(a) of the Note Agreement or knowingly encourage Section 8.1(g) of the submission Note Agreement (other than a default by the Company or any Subsidiary of any Takeover Proposal (as defined belowthe obligation to purchase all or a portion of the Put Shares in a circumstance which does not constitute a Put Event Exercise Payment Default) or (ii) participate a Put Event Exercise Payment Default; (g) the Company shall not, and shall not permit any Subsidiary to, as the case may be, permit the aggregate amount of salary and other direct and indirect remuneration (including, but not limited to, employee benefits and professional, consulting and management fees and expenses (but excluding out-of-pocket expenses incurred in attending meetings of the Company’s Board of Directors) paid by the Company or any discussions or negotiations regardingSubsidiary, as the case may be, during any fiscal year to Sterling Investment Partners Advisors, LLC, any Affiliate of Sterling Investment Partners Advisors, LLC, or furnish to any person successor or transferee of any nonpublic information with respect tosuch Person(s), or take any other action designed member of such Person’s immediate family, directly or reasonably likely indirectly, without the prior written consent of a majority in interest of the Holders) to facilitate any inquiries exceed the amounts provided for in the Management Agreement or Section 7.12 of the making Stockholders’ Agreement (provided that nothing herein shall prevent the Company from providing insurance and similar benefits to all its directors and, in connection with and following the Initial Public Offering, granting options to all non-employee directors, having an exercise price equal to Fair Market Value on the date of any proposal that constitutes any Takeover Proposal, the grant); provided, however, that ifneither the Company nor any of its Subsidiaries shall be permitted to make any payment under the Management Agreement upon the occurrence and during the continuation of either (i) an Event of Default under Section 8.1(a) of the Note Agreement (other than a default by the Company or any Subsidiary of the obligation to purchase all or a portion of the Put Shares in a circumstance which does not constitute a Put Event Exercise Payment Default) or Section 8.1(g) of the Note Agreement or (ii) a Put Event Exercise Payment Default; (h) the Company shall not, at and shall not permit any time prior Subsidiary to, acquire any debt or equity interest in any Person or establish or acquire a Subsidiary or make any additional capital contribution or any loans to or purchase any additional equity in any Subsidiary or make any advances or loans to any Subsidiary (other than a Subsidiary which is a guarantor of the obligations of the Company to the Meeting Holders and with respect to which any sale of the capital stock or substantially all of the assets of such Subsidiary would constitute an Event of Default (as defined in the Note Agreement)) or acquire all or substantially all of the assets of any Person except those which do not involve the investment, incurrence of debt or liability or contribution of more than (i) $500,000 per year in the aggregate and (ii) $1,000,000, from and after the Closing Date in the aggregate, or transfer any technology or assets to any Subsidiary (other than a Subsidiary which is a guarantor of the obligations of the Company to the Holders and with respect to which any sale of the capital stock or substantially all of the assets of such Subsidiary would constitute an Event of Default (as defined in the Note Agreement)) unless the Holders have been given prior written notice thereof and such transfer has been approved by a majority of the outside directors of the Company; (i) the Company shall not, and shall not permit any Subsidiary to, (I) modify, amend, terminate or waive any provision of any Employment Agreement (except as permitted by the Note Purchase Agreement), or (II) allow or permit ▇▇▇▇▇▇ ▇▇▇▇ (or any successor thereto consented to by the Holders) to cease to perform the functions of chief executive officer (or president) of the Company unless the Company shall have within a reasonable period not to exceed one hundred eighty (180) days obtained a successor chief executive officer (or president) of at least comparable background, experience and ability who is acceptable to and consented to by a group of Holders holding not less than two-thirds (2/3) of the Warrant Shares, or (III) allow or permit ▇▇▇▇ ▇▇▇▇▇ (or any successor thereto consented to by the Holders) to cease to perform the functions of chief financial officer of the Company unless the Company shall have within a reasonable period not to exceed one hundred eighty (180) days obtained a successor chief financial officer of at least comparable background, experience and ability who is acceptable to and consented to by a group of Holders holding not less than two-thirds (2/3) of the Warrant Shares; (j) the Company shall not, and shall not permit any Subsidiary to, enter into, or otherwise become bound by, any agreement, arrangement or understanding, other than this Agreement or the Stockholders’ Agreement and the documents contemplated hereby and thereby, modifying, restricting or in any way affecting the rights of any securityholder to vote the securities of the Company; (k) the Company shall not permit the aggregate par value of the Capital Stock subject to the Warrants from time to time to exceed the price payable upon the exercise of the Warrants, as adjusted from time to time; (l) the Company shall not take any action, or permit any Subsidiary to take any action, which could reasonably be expected to cause a “Regulatory Violation” or “Regulatory Problem,” as such terms are defined in the Stockholders’ Agreement; (m) the Company shall not, and shall not permit any Subsidiary to, enter into any employee stock option or benefit plan with respect to shares of Capital Stock of the Company unless (i) such plan shall be approved by a majority of the disinterested directors of the Board of Directors of ACE determines in good faiththe Company, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent (ii) the options shall contain an exercise price equal to the fair market value thereof at the date hereofof grant, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (yiii) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of business), or options shall be exercisable into not more than a 20% interest in 592,189 shares of the total voting securities Common Stock (subject to adjustments for stock splits and reverse stock splits and similar events as to which corresponding adjustments are made to the number of ACE shares of Capital Stock issuable upon exercise of the Warrants); and (n) the Company shall not obligate itself or otherwise agree to take, permit or enter into any of its subsidiaries or any tender offer or exchange offer that if consummated would result the events described in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariessubsections (a) through (m) above.

Certain Actions. Except with respect to (a) From the Execution Date until the Closing Date, except as otherwise expressly provided in this Agreement Agreement, or as required by the Bankruptcy Court and the transactions contemplated herebyprovisions of the Bankruptcy Code, neither ACE nor Seller, except in the Ordinary Course of Business consistent with past practice or as set forth on Section 5.3 of the Disclosure Schedule, shall not take any Stockholder nor of the following actions without first obtaining the written consent of Buyer, which shall not be unreasonably withheld, delayed, or conditioned: (a) amend or terminate any affiliate thereof nor any representatives thereof shall directly Assumed Contract; (b) sell, assign, transfer, distribute, or indirectly (i) solicit, initiate otherwise transfer or knowingly encourage the submission dispose of any Takeover Proposal Acquired Assets or other plant, equipment, account receivable, or other assets or property, in each case, other than sales of Inventory in the Ordinary Course of Business; (as defined belowc) take, cause, or (ii) participate permit to occur any action or event that would be reasonably likely to result in any discussions representation or negotiations regardingwarranty of Seller being inaccurate as of the Closing Date; (d) make any changes in cash management practices, pricing policies, credit or allowance policies, monetary policies, or furnish to accounting policies; (e) make any person any nonpublic information with respect payment to, or take undertake any other action designed transaction with, any Affiliate, officer, director, owner, or reasonably likely to facilitate any inquiries or the making manager of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (Seller other than the purchase payment of products in compensation or benefits; (f) adopt, amend, or terminate any Employee Benefit Plan or other employee plan; or (g) change the ordinary course compensation or benefits, or terminate without cause or change the position, of businessany employee of Seller. (b) Seller shall have terminated that certain Asset Purchase Agreement by and among Seller and Candy Cube Holdings, LLC pursuant to the Bidding Procedures Order prior to Closing. (c) At or prior to Closing, there shall not be a written notice of an Event of Default issued by SFCC under the DIP Facility (as such terms are defined therein), and Seller shall be in compliance with the Budget dated October 4, 2019 and the variance limitations set forth in Section 6.18(b) of the DIP Facility. For the avoidance of doubt, the Budget filed with the Bankruptcy Court on September 6, 2019 shall not be the operative budget for any purpose under this Agreement. (d) Between the Effective Date and the Closing, Seller shall promptly deliver to Buyer copies of all reports provided to the lender under the DIP Facility. (e) Buyer shall have no liability for post-petition obligations, including without limitation any unpaid post-petition vendor claims or more than a 20% interest in post-petition landlord claims under any Lease, which claims and payments shall be paid pursuant to the total voting securities Budget. For avoidance of ACE or any doubt, all Cure Costs that arose pre-petition shall be an obligation of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariesthe Buyer and not Seller.

Certain Actions. Except In the event that during the three-year period following the Closing, any of Greenwich II, GSCP Offshore or GF (collectively, the "Greenwich Purchasers") beneficially own any Common Stock or any other securities of the Company eligible to vote at shareholder meetings of the Company (all such Common Stock and securities, the "Voting Securities"), such Greenwich Purchaser shall (i) be present in person or represented by proxy at all such stockholder meetings so that all such Voting Securities shall be counted for the purpose of determining the presence of quorum at such meetings, (ii) shall vote or cause to be voted all such Voting Securities for the election as Directors of the Company those persons recommended for election by the Board, (iii) with respect to all other matters submitted to a vote of the Company's common stockholders, shall vote or cause to be voted all such Voting Securities in favor and against any such matter, pro rata, to the percentages of "in favor" and "against" votes with respect to such matter made by all outstanding Voting Securities not beneficially owned by Greenwich II, provided that the provisions of this Agreement Section 9.1 shall not apply to any such matter relating to any proposed or existing stock option, stock incentive, employee benefit or other like plan or arrangement and the transactions contemplated hereby(iv) shall not, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicitindirectly, initiate or knowingly encourage the submission of any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable without having been specifically requested to do so in order writing by the Company or the Board vote any Voting Securities in favor of the removal of, or otherwise seek to comply with its fiduciary duties remove from the Board, any person whose removal is not recommended by the Board. In addition, during the three-year period following the Closing, the Greenwich Purchasers shall not (i) propose or disclose an intent to stockholders under applicable lawpropose any form of business combination, ACE mayacquisition, in response to a Takeover Proposal which was not solicited subsequent restructuring, recapitalization or other similar transaction relating to the date hereofCompany, (xii) furnish information acquire or agree, offer, seek or propose to acquire, or make any proposal with respect to such party to the possible acquisition of, ownership (including, without limitation, beneficial ownership) of any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes securities or business or any substantial part of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of the assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of business), or more than a 20% interest in the total voting securities of ACE Company or any of its subsidiaries or any tender offer rights or exchange offer that if consummated would result options to acquire such ownership from a third party or otherwise, except any such acquisition resulting from the exercise of their respective Options or their respective conversion of any Shares into Common Stock or for any other acquisitions which, after giving effect thereto, do not in the aggregate exceed 1% of the Company's issued and outstanding Common Stock as of the date of such acquisition, (iii) seek or propose to control the Company's management or policies (except by virtue of the exercise of their respective approval rights set forth in Section 10.3 hereof), (iv) except as approved by the Board, make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in the Commission Rules) to vote, or seek to advise or influence any person beneficially owning 20% or more entity with respect to the voting of, any Voting Securities of the Company, (v) enter into any class of equity securities of ACE discussions, negotiations, arrangements or understandings with any third party with respect to any of its subsidiaries the foregoing, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) request the Company, directly or indirectly, to amend or waive any merger, consolidation, business combination, sale provisions of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariesthis Section 9.1.

Certain Actions. Except Since the Balance Sheet Date, the Company has --------------- carried on its business in the ordinary course in all material respects substantially in accordance with the procedures and practices in effect on the Balance Sheet Date, and except in connection with the transactions contemplated by this Agreement, the Investors' Rights Agreement, the Co-Sale Agreement, the Registration Rights Agreement, the Letter Agreement and the Commercial Agreement, since the Balance Sheet Date (and through the date of this Agreement with respect to this Agreement and the transactions contemplated hereby, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (iSection 3.14(a)) solicit, initiate or knowingly encourage the submission of any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was there has not solicited subsequent to the date hereof, (x) furnish information been with respect to the Company: (a) any change in the financial condition, properties, assets, liabilities, business or results of operations, which change by itself or in conjunction with all other such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreementchanges, "Takeover Proposal" means any inquiry, proposal whether or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products not arising in the ordinary course of business), have had or is reasonably likely to have a material adverse effect; (b) any contingent liability incurred thereby as guarantor or surety with respect to the obligations of others; (c) any mortgage, encumbrance or lien placed on any of the material assets or properties thereof other than in connection with equipment leases in the ordinary course of business or the Company's lease of its headquarters; (d) any obligation or liability for borrowed money incurred thereby other than in the ordinary course of business, which obligations or liabilities do not exceed in the aggregate $150,000; (e) any purchase, license, sale or other disposition, or more any agreement or other arrangement for the purchase, license, sale or other disposition, of any of the material properties, assets or goodwill thereof other than a 20% interest in the total voting securities ordinary course of ACE business; (f) any damage, destruction or loss, whether or not covered by insurance, that would have or is reasonably likely to have a material adverse effect; (g) any declaration, setting aside or payment of any dividend on, or the making of any other distribution in respect of, the capital stock thereof, any split, stock dividend, combination or recapitalization of the capital stock thereof, any direct or indirect redemption, purchase or other acquisition of the capital stock thereof; (h) any labor dispute or claim of unfair labor practices, any change in the compensation payable or to become payable to any of its subsidiaries officers, employees or agents, or any tender offer bonus payment or exchange offer arrangement made to or with any of such officers, employees or agents; (i) any loss of key executive, management or development personnel thereof that if consummated has had or would result have a material adverse effect on the Company; (j) any payment or discharge of a lien or liability thereof, which lien or liability was not either (i) shown on the balance sheet as of the Balance Sheet Date included in the Financial Statements or (ii) incurred in the ordinary course after the Balance Sheet Date; (k) any person beneficially owning 20% obligation or more of any class of equity securities of ACE or liability incurred thereby to any of its subsidiaries officers, directors, stockholders or affiliates, or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution loans or similar transaction involving ACE or advances made thereby to any of its subsidiariesofficers, directors, stockholders or affiliates, except normal compensation and expense allowances payable to officers; (l) any amendment or change in the Certificate of Incorporation or Bylaws of the Company; (m) except in connection with the issuance of the Series A Stock, any issuance or sale of any debt or equity securities (including but not limited to stock) thereby or of any options or other rights to acquire from the Company, directly or indirectly, any debt or equity securities (including but not limited to stock) thereof other than shares of Company Common Stock issued upon exercise of Company options issued pursuant to the Stock Plan; or (n) any deferral of the payment of any accounts payable outside the ordinary course or in an amount which is material or any discount, accommodation or other concession made outside the ordinary course in order to accelerate or induce the collection of any receivable.

Certain Actions. Except Notwithstanding anything in this Agreement to the contrary, the Company shall not, and shall not permit any Company Subsidiary (or, for the avoidance of doubt, any Person that immediately after such transaction would be a Company Subsidiary) to, and no Manager shall vote to cause the Company or any Company Subsidiary to, without the prior written consent of (or a prior written waiver from) Sponsor in its sole discretion and in its capacity as a Member: (i) alter in any material respect the Business or the operations of the Company and the Company Subsidiaries, in each case as of immediately after the Closing, except where such alterations are contained in the annual business plans approved hereafter by the Board (collectively, the “Approved Business Plans”); (ii) approve (A) the annual business plan, including annual operating and capital budgets of the Company and the Company Subsidiaries or (B) any subsequent material deviations from any such Approved Business Plan or annual operating budget; (iii) alter, amend, repeal or waive (or propose to alter, amend, repeal or waive) by any means (including by merger, consolidation, conversions, Transfer, liquidation, dissolution or any other means) any provision of this Agreement or any other governing or organizational document of the Company or any Company Subsidiary; or commit or agree to do any of the foregoing; (iv) (A) increase or decrease the number of representatives on the Board or any Board committee; or (B) amend, modify, reduce, eliminate or otherwise alter or circumscribe, in any way, the rights of certain Persons to designate Managers; or (C) institute, modify, increase or waive any requirement to serve as a Manager on the Board, any committee thereof, including with respect to this Agreement and the transactions contemplated herebyindependence; (v) liquidate (including pursuant to Section 11.2), neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly dissolve (including pursuant to Section 11.1), incur or indirectly (i) solicit, initiate or knowingly encourage the submission of any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, suffer an Insolvency Event or take any other action designed under Article XI; (vi) enter into, amend, alter or reasonably likely waive any material rights with respect to facilitate any inquiries arrangements, transactions or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation agreements with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and affiliate, Manager, Member, manager, member, partner, director, officer, employee, consultant, advisor, counsel or service provider of the Company or any Company Subsidiary, or (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes any affiliate or member of this Agreementthe Family Group of any affiliate, "Takeover Proposal" means Manager, Member, manager, member, partner, director, officer, employee, consultant, advisor, counsel or service provider of the Company or any inquiryCompany Subsidiary or other related parties, proposal including any management incentive or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole compensation plan (other than the purchase Incentive Equity Plan (it being understood that any termination, amendment, increase, modification or waiver of products the Incentive Equity Plan (including any increase in the number of Units to be issued thereunder (or the terms of the Units authorized thereunder) following the date hereof will require the prior written consent of Sponsor)); except, with regard to actions that would otherwise be subject to this Section 6.1(b)(vi), those actions which are in the ordinary course of business)business and on terms and conditions not less favorable, when considered on the whole, to the Company or such Company Subsidiary, as the case may be, that could be obtained on an arm’s-length basis from unrelated or unaffiliated third parties; (vii) make or guarantee directly or indirectly, any loans or advances to any employee, executive officer, director, Manager, Member, manager, member, or more than partner of the Company or a 20% interest Company Subsidiary; (viii) hire, terminate (actually or constructively) or materially alter the responsibilities, compensation or benefits of the chief executive officer (or equivalent) of the Company; (ix) (A) change or replace the public accountants or outside auditors of the Company and/or the Company Subsidiaries, except that the Company and/or any Company Subsidiary may, without the prior consent of Sponsor, initially replace the Company’s existing auditors; (B) change any material accounting policy, method, principle or practice used by the Company and/or the Company Subsidiaries; (C) depart from GAAP on any of the Company’s or a Company Subsidiary’s annual and quarterly financial statements; (D) select, retain, amend or terminate (or propose to amend or retain, or threaten to terminate) any retention, engagement, advisory, brokerage, transaction or underwriting arrangement or agreement (or the compensation or payments to be made by, or the obligations of, the Company or the Company Subsidiaries thereunder) with any underwriter, manager, financial advisor, broker or banker to the Company and/or the Company Subsidiaries in connection with a Sale Transaction (or process to effect a Sale Transaction) or initial Public Offering; or (E) enter into, amend, alter or waive any material rights, obligations or terms of, any Material Contract or any Strategic Relationship, in each case which would be reasonably likely to result in a financial impact on the total voting securities Company or any Company Subsidiary in excess of ACE $5 million; (x) create, authorize, assign, grant, sell or issue any Units, Equity Securities or other interests, or instruments comprising, linked to or based on Units, Equity Securities or the profits of the Company or any of its subsidiaries the Company Subsidiaries or that otherwise provide a Person with the benefits of the same (other than issuances of Class A Common Units or Class B Common Units approved by the Board under the Incentive Equity Plan pursuant to Equity Agreements); (xi) admit any Person as a Member (or otherwise provide a Person with the benefits thereof) or admit any Person as a Substitute Member (other than any Permitted Transferee in accordance with Section 10.1); (xii) make any acquisitions or investments (or propose to make acquisitions or make investments), whether in the form of debt or equity, whether in one transaction or a series of related transactions and regardless of how such transaction is structured; provided that, without the prior written consent of Sponsor (A) the Company and the Company Subsidiaries may acquire the equity of, or make an investment in, or enter into a joint venture with, entities in the Business, in each case, whether pursuant to a single transaction or a series of related transactions, involving or with an aggregate value of less than $25 million, and (B) enter into any acquisition or investment transaction which would be allowed under the provisions of Section 6.1(b)(xii) above; (xiii) dispose of or divest (or propose to dispose of or divest) or exchange or sell any portion of the assets, or Units or Equity Securities of the Company, any Company Subsidiary or any tender offer Affiliate of the Company (each a “Disposal”), (A) any such property with a Fair Market Value in excess of $10 million, in the case of any one such Disposal (whether consummated in a single transaction or exchange offer a series of related transactions), and (B) any such property with an aggregate Fair Market Value in excess of $45 million, in the case of all Disposals permitted under this Section 6.1(b)(xv), including any Disposals for which Sponsor consent is required under the preceding clause (A), taken as a whole; (xiv) enter into any merger, combination, conversion, consolidation, amalgamation, recapitalization, reorganization, joint venture or partnership, where such transaction, or series of related transactions would be material to the Company and the Company Subsidiaries; (xv) (A) make any Distribution (for the avoidance of doubt, other than Tax Distributions), declare any dividend on, or repurchase or redeem, any Units or Equity Securities of the Company or any Company Subsidiary, except as specifically set forth in the Incentive Equity Plan and the applicable Equity Agreement, or (B) in the Company’s capacity as a manager, director, member, partner, shareholder or interestholder of any Company Subsidiary, directly or indirectly cause or permit any distribution by any Company Subsidiary not in accordance with the terms of such Company Subsidiary’s operating agreement, certificate of incorporation, stockholders agreement or similar governing document consistent with past practices or prior course of conduct; (xvi) initiate, defend, prosecute, settle or waive any claim, arbitration, lawsuit or other legal action or Proceeding (or any threatened claim, arbitration, lawsuit or other legal action or Proceeding), to the extent that if consummated (A) the amount in dispute or any value otherwise pertaining to any such action would reasonably be expected to exceed $4 million, individually or in the aggregate, (B) any such action involves a Governmental Entity as a party or includes allegations of a criminal nature, or (C) the resolution of which would result in equitable relief being imposed on the Company or any person beneficially owning 20% or more of any class of equity securities of ACE Company Subsidiary, and whether initiated by the Company or any of its subsidiaries the Company Subsidiaries, any party hereto, any Affiliates of any party hereto, or by any third party; (xvii) change or convert the current legal form or organizational structure of the Company or any merger, consolidation, business combination, sale Company Subsidiary or change the classifications for Tax purposes of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE the Company or any Company Subsidiary; (xviii) change or adopt any method of allocating Profits, Losses or taxable items of income, loss, credit or deduction that may adversely impact any member of the Sponsor Group (or any direct or indirect member of any member of the Sponsor Group); or (xix) make or guarantee directly or indirectly, any loans or advances to any sales representatives or sales associates of the Company or a Company Subsidiary. The Board, the Chief Executive Officer, the Chief Financial Officer, the President or the General Counsel of the Company, as applicable, shall promptly and, in any case, prior to making any determination to take any action (or determination that requires omitting to take action) requiring the prior written consent of the Sponsor pursuant to this Agreement, disclose in writing to the holders of Sponsor Equity any such fact, matter, circumstance or other information pertaining to matters requiring the prior written consent of the Sponsor that would be material or relevant to a prudent person in deciding whether or not to consent to any such matter. Pursuant to Section 6.7(b), Sponsor shall have an amount of time reasonable under the circumstances to duly consider such fact, matter, circumstance and other information, which consideration may include consultation with advisors and representatives, or approval from any internal decision making body, in making a determination to provide or withhold its subsidiariesconsent or approval in Sponsor’s sole discretion. Any action (or determination that requires omitting to take action) that is ultimately determined to require the prior written consent of the Sponsor pursuant to this Agreement, including this Section 6.1(b), that is taken (or determination made not to act) without such prior written consent shall be void ab initio and shall not be a binding or authorized obligation or determination of the Company or any Company Subsidiary.

Certain Actions. Except with respect to this Agreement and Executive agrees that until the transactions contemplated hereby, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly earlier of the second anniversary of the Termination Date or indirectly (i) solicit, initiate or knowingly encourage the submission a Change of any Takeover Proposal Control (as defined below) ), Executive shall not, on his own behalf or (ii) participate in on behalf of any discussions or negotiations regardingother person, partnership, association, corporation, or furnish to any person any nonpublic information with respect toother entity, directly or take any other action designed or reasonably likely to facilitate any inquiries or indirectly, absent the making prior written authorization of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines the Company, take any of the following actions: a. make, engage in good faith, after consultation with outside counsel, that it or in any way participate in any “solicitation” (as such term is reasonably advisable to do so used in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent the proxy rules of the Securities and Exchange Commission (the “SEC”) but without regard to the date hereofexclusion set forth in Rule 14a-1(1)(2)(iv) under the Securities Exchange Act of 1934, as amended (xthe “Exchange Act”)) furnish information of proxies, consents or voting authorizations with respect to the election or removal of directors of the Company or any other matter or proposal in respect of which the Company’s stockholders are requested or required to vote on, or become a “participant” (as such party term is used in the proxy rules of the SEC) in any such solicitation of proxies, consents or voting authorizations from the Company’s stockholders; b. encourage, influence, induce or advise or assist any person with respect to the giving, revocation or withholding of any proxy, consent or other authorization to vote any shares of common stock or other voting securities of the Company (other than solicitation activity that is consistent with the recommendation of and expressly authorized by the Board) in connection with any matter submitted to the Company’s stockholders for their consideration and vote; c. form, join, encourage, influence, advise, act in concert with or in any way participate in any “group” (as defined pursuant to Section 13(d) of the Exchange Act) with respect to any voting securities of the Company; d. propose, offer or in any way participate (or assist or facilitate any other person pursuant to do so) in any tender offer, exchange offer, merger, consolidation, acquisition, business combination, recapitalization, reorganization, restructuring, liquidation, dissolution or other extraordinary transaction involving the Company or any of its subsidiaries or the Company’s securities or a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial material amount of the assets of ACE and/or the Company and its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of businessan “Extraordinary Transaction”), or more than frustrate or seek to frustrate the pendency or consummation of any Extraordinary Transaction proposed, approved or recommended by the Board of Directors, or make any public statement with respect to an Extraordinary Transaction, or make, either alone or in concert with others, any proposal to the Company or the Board of Directors that would reasonably be expected to require or result in a 20% interest in the total voting securities of ACE or public announcement regarding any of its subsidiaries the matters described in this Section 17; e. make or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more be the proponent of any class of equity securities of ACE stockholder proposal (pursuant to Rule 14a-8 under the Exchange Act or otherwise); or f. publicly disclose any intention, plan, commitment or arrangement to do any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariesthe foregoing.

Certain Actions. Except with respect to this Agreement Without the prior written consent of the Holders, which consent may be withheld in the sole discretion of the Holders, the Company will not, and the transactions contemplated herebyCompany will not permit any of its Subsidiaries to: (a) permit to occur any amendment, neither ACE nor alteration or modification of its Articles of Incorporation, Bylaws or other charter or organizational documents, as constituted on the date of this Agreement, the effect of which, in the reasonable credit judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of Company under this Agreement, the Warrants, or the Shareholder Agreement; (b) declare or make any Stockholder nor any affiliate thereof nor any representatives thereof shall dividends or distributions of its cash, stock, property, or assets or redeem, retire, purchase, or otherwise acquire, directly or indirectly (i) solicitindirectly, initiate any of its Capital Stock or knowingly encourage the submission Capital Stock or securities of any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regardingAffiliate of the Company, or furnish to any person any nonpublic information with respect to, securities convertible or take any other action designed exchangeable into Capital Stock or reasonably likely to facilitate any inquiries Capital Stock or the making securities of any proposal that constitutes any Takeover Proposal, Affiliate of the Company; provided, however, that (i) any Subsidiary of Precise may declare and pay dividends or make other distributions to Precise, (ii) any Subsidiary of Precise may declare and pay dividends or make other distributions to any other wholly-owned Subsidiary of Precise, (iii) Precise may declare and pay dividends to the Company to enable the Company to pay franchise taxes and other ordinary course operating expenses in an amount not to exceed $25,000 in any twelve-month period, (iv) Precise may fund purchases by the Company or Sunderland of the common stock of the Company or Sunderland held by an employee of the Company upon the termination of such individual's employment with the Company (so long as (A) the Company shall give prior written notice thereof to the Purchaser, (B) the aggregate amount of all such repurchases made after the Closing Date does not exceed $3,000,000, (C) the aggregate amount of all such repurchases made during any fiscal year of the Company does not exceed $1,000,000 and (D) no default or event of default shall have occurred and be continuing under this Agreement or the Shareholder Agreement, or would occur after giving effect thereto), (v) Precise may make distributions to the Company to permit the Company to (A) purchase the Warrants upon exercise of the Put Option by the Holders of the Warrants and (B) pay the principal balance of, or any scheduled interest payments due on, any promissory notes issued by the Company to the Holders of the Warrants in accordance with the terms of the Shareholder Agreement, (vi) Precise or any Subsidiary of Precise may make and pay regularly scheduled dividends on, and may make any scheduled redemption or repurchase of, any Disqualified Stock, subject to the restrictions set forth in the Indenture and in Section 4.04 of the Shareholder Agreement, (vii) the Company, Precise and any Subsidiary of Precise may make and pay any distribution permitted under Section 4.04(g) hereof, and (viii) Precise or any Subsidiary of Precise may redeem, repurchase, retire or otherwise acquire any Disqualified Stock in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other Disqualified Stock, subject to the restrictions set forth in Section 4.04(d)(iii) hereof; (c) effect any sale, lease, assignment, transfer, or other conveyance of any portion of the assets or operations or the revenue or income generating capacity of the Company or any Subsidiary (other than sales, leases, assignments, transfers and other conveyances which are permitted pursuant to the terms of the Indenture) or to take any such action that has the effect of the foregoing; (d) issue or sell, or otherwise dispose of any Capital Stock; provided, however, that (i) the Company may issue or sell Permitted Stock, (ii) the Company may issue or sell any Capital Stock required or permitted to be issued to the Holders pursuant to this Agreement, the Shareholder Agreement or the Pecks Securities Purchase Agreement, (iii) Precise or any Subsidiary of Precise may issue or sell any Disqualified Stock (other than Common Stock) if such issuance or sale is permitted pursuant to the terms of the Indenture, including, without limitation, if applicable, the Fixed Charge Coverage Ratio test set forth in Section 4.12 of the Indenture (except that, for purposes of determining whether any such sale or issuance is permitted pursuant to the terms of this Agreement (as opposed to the Indenture), the Fixed Charge Coverage Ratio test shall be 3.0 to 1.0 rather than 2.0 to 1.0), and (iv) the Company may effect an Initial Public Offering, subject to the terms of this Agreement and the Shareholder Agreement; (e) dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary, or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock; provided, however, that (i) any Inactive Subsidiary may be dissolved or liquidated, (ii) any wholly-owned Subsidiary of Precise may be merged with and into (A) Precise, provided that Precise is the surviving corporation or (B) any other wholly-owned Subsidiary of Precise, (iii) Precise may effect any consolidation or merger permitted pursuant to the terms of the Indenture if, at any time prior in addition to the Meeting requirements set forth in the Indenture, (A) all of the Capital Stock (other than Disqualified Stock) of the entity or Person formed by or surviving any such consolidation or merger (if other than Precise) will, immediately after giving effect to such transaction, be directly owned and controlled by the Company and (B) except in the case of a merger of Precise with or into a wholly-owned Subsidiary of Precise, Precise or the entity or Person formed by or surviving any such consolidation or merger (if other than Precise) will, if required under the terms of the Indenture, at the time of such transaction and after giving pro-forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.01 of the Indenture (except that, for purposes of determining whether any such consolidation or merger is permitted pursuant to the terms of this Agreement (as opposed to the Indenture), the Fixed Charge Coverage Ratio test shall be 3.0 to 1.0 rather than 2.0 to 1.0), and (iv) any Subsidiary of Precise may effect any consolidation or merger permitted pursuant to the terms of the Indenture if, in addition to the requirements set forth in the Indenture, (A) all of the Capital Stock (other than Disqualified Stock) of the entity or Person formed by or surviving any such consolidation or merger (if other than such Subsidiary) will, immediately after giving effect to such transaction, be directly or indirectly owned and controlled by Precise and (B) except in the case of a merger of a Subsidiary of Precise with or into another wholly-owned Subsidiary of Precise, such Subsidiary or the entity or Person formed by or surviving any such consolidation or merger (if other than such Subsidiary) will, if required under the terms of the Indenture, at the time of such transaction and after giving pro-forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.12 of the Indenture (except that, for purposes of determining whether any such consolidation or merger is permitted pursuant to the terms of this Agreement (as opposed to the Indenture), the Fixed Charge Coverage Ratio test shall be 3.0 to 1.0 rather than 2.0 to 1.0); (f) enter into any business that the Company or Precise is not conducting on the date of this Agreement; (g) sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any director, officer, or shareholder of the Company or the Shareholder, or any Affiliate or relative of the foregoing (each of the foregoing, an "Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person and (ii) the Company delivers to the Holders (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $1.0 million, a resolution of the Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, Board of Directors and (xb) furnish information with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, an opinion as to the fairness to the Holders of such party Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing; provided, however, that (r) the application of the proceeds of the Public Notes offering and the transactions entered into in connection therewith in the manner contemplated in "Use of Proceeds" section set forth in the Indenture, (s) payments under the Management Agreement in an amount not to exceed $300,000 in any person pursuant twelve-month period, (t) the payment of $500,000 by the Company or any of its Subsidiaries to a customary confidentiality Mentmore and/or its Affiliates made for financial advisory services in respect of the Public Notes offering, (u) payments under the tax sharing agreement by and (y) participate among the Company, Precise, any Subsidiaries of Precise and Sunderland, to the extent that, in discussions the case of Precise and negotiations regarding its Subsidiaries, such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase payments do not otherwise exceed the tax liability that Precise and its Subsidiaries would have had were it not part of a substantial amount consolidated group, (v) any employment agreement, compensation agreement or employee benefit arrangement entered into by the Company or any of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products Subsidiaries in the ordinary course of business), (w) transactions between or more than a 20% interest in among the total voting securities Company, Precise and/or their Subsidiaries, (x) the payment of ACE reasonable out-of-pocket expenses by Precise to Mentmore pursuant to the Management Agreement, (y) any capital contributions, advances, loans or other investments made by Precise or any of its subsidiaries wholly-owned Subsidiaries to any wholly-owned Subsidiary of Precise, and (z) any dividend or distribution permitted under Section 4.04(b) hereof, in each case, shall not be deemed Affiliate Transactions; (h) increase the aggregate amount of management, consulting or similar fees paid or accrued by the Company or its Subsidiaries during any tender offer fiscal year to or exchange offer that if consummated would result in any person beneficially owning 20% for the direct or more indirect benefit of any class of equity securities of ACE or any of its subsidiaries officers, directors, security holders or Affiliates, or pay any mergerfinancial advisory, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution investment banking or similar transaction involving ACE fees to or for the direct or indirect benefit of any of its subsidiariesofficers, directors, security holders or Affiliates; (i) acquire any substantial business operation or assets (through a stock or asset purchase or otherwise), or acquire any debt or equity interest in any Person, or establish or acquire a Subsidiary (other than any Subsidiary existing on the date hereof), or make any additional capital contribution or purchase any additional equity in any Subsidiary; provided, however, that Precise and its Subsidiaries may effect any of the foregoing transactions if such transaction is permitted pursuant to the terms of the Indenture, including, without limitation, if applicable, the Fixed Charge Coverage Ratio test set forth in Section 4.12 of the Indenture (except that, for purposes of determining whether any such sale or issuance is permitted pursuant to the terms of this Agreement (as opposed to the Indenture), the Fixed Charge Coverage Ratio test shall be 3.0 to 1.0 rather than 2.0 to 1.0); (j) allow the aggregate par value of the Capital Stock subject to the Warrants from time to time to exceed the price payable on exercise of the Warrants, as adjusted from time to time; (k) amend, modify or waive any of the terms or provisions of the Senior Loan Documents if such amendment, modification or waiver (i) is prohibited by the terms of the Indenture or (ii) would extend the final maturity date of the Senior Loans beyond June 30, 2002; or (l) obligate itself or otherwise agree to take, permit or enter into any of the events described in subsections (a) through (k) above. Notwithstanding anything to the contrary contained in this Agreement, this Section 4.04 shall terminate and be of no further force and effect after the occurrence of an Initial Public Offering and after such time as all shares of Capital Stock issuable in respect of such Purchaser's Warrant are released from the terms and provisions of any holdback agreement contemplated by Section 7.07 of the Shareholder Agreement and are registered or otherwise freely transferable."

Certain Actions. Except with respect For so long as the Second Supplemental Warrant or the Warrant Shares remain outstanding, without the prior written consent of the Holders, which consent may be withheld in the sole discretion of the Holders, the Company will not, and will not permit any Subsidiary to: (a) permit to occur any amendment, alteration, or modification of the Bylaws of the Company, as constituted on the date of this Agreement, the effect of which, in the sole judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of the Company under this Agreement, the Warrant, the Restated Articles of Incorporation of the Company (sometimes called the "Certificate") or the Priority Shareholder Agreement or permit to occur any amendment, alteration, or modification of the Restated Articles of Incorporation or other charter or organizational documents of the Company, as constituted on the date of this Agreement and except to the transactions contemplated herebyextent necessary to comply with Section 4.04(h) or 4.10; (b) except as otherwise permitted in the Certificate or required by the Priority Shareholder Agreement or the Other Shareholder Agreements, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicitdeclare or make any dividends or distributions of its cash, initiate stock, property, or knowingly encourage assets or redeem, retire, purchase, or otherwise acquire, directly or indirectly, any of the submission Capital Stock or capital stock or securities of any Takeover Proposal Affiliate or any Subsidiary of the Company, or any securities convertible or exchangeable into Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company or otherwise make any distribution on account of the purchase, repurchase, redemption, put, call or other retirement of any shares of Capital Stock of the Company or any Subsidiary thereof or of any warrant, option or other right to acquire such shares (except pursuant to the Purchase Documents) (as defined below) in Section 11.1 of the Priority Note Agreement or the Certificate), or (ii) participate make any payment or distribution on account of any Indebtedness (as defined in such Priority Note Agreement) of the Company which is subordinate to the Senior Subordinated Notes (as defined in Section 11.1 of the Original Note Agreement (as defined in the Priority Shareholder Agreement)), and the Priority Note (except that Subsidiaries may make distributions to the Company), and (iii) except as otherwise provided for in the Priority Note Agreement or the Original Note Agreement, pay any discussions professional consulting or negotiations regarding, management fees or furnish any other payments to any person shareholder of Parent or any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, Subsidiary; provided, however, that if, at any time prior the following shall be permitted as exceptions to the Meeting preceding provisions of this clause (b): declare and make payments of (A) dividends in cash from Subsidiaries of the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent Company to the date hereofCompany to the extent necessary to permit the Company or its Subsidiaries to pay the Priority Senior Subordinated Obligations (as defined in Section 11.1 of the Priority Note Agreement) and the Senior Subordinated Obligations (as defined in Section 11.1 of the Original Note Agreement) due and payable from the Company or its Subsidiaries to Rice, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (yB) participate dividends or stock repurchases permitted by the Senior Loan Agreement (as defined in discussions and negotiations regarding such Takeover Proposal. For purposes Section 11.1 of this the Priority Note Agreement); (c) effect any sale, "Takeover Proposal" means lease, assignment, transfer, or other conveyance of any inquiry, proposal material portion of the assets or offer from any person other than GPI relating to any direct operations or indirect acquisition the revenue or purchase income generating capacity of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole the Company (other than inventory in the ordinary course of business and other assets reasonably and in good faith determined by the Company to be obsolete or no longer necessary to the business of the Company or any Subsidiary and other asset dispositions permitted by the Senior Loan Agreement including the Asset Transfer (as defined in the Senior Loan Agreement)) or to take any such action that has the effect of any of the foregoing; (d) except for issuances of stock permitted by the Senior Loan Agreement, the Permitted Stock, or pursuant to the express terms of this Agreement or the Other Shareholder Agreement, issue or sell, or otherwise dispose of any Capital Stock or Capital Stock of any Subsidiary, dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock of the Company or of any Subsidiary; (e) enter into any business that the Company or any Subsidiary is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise except for businesses and acquisitions permitted by the Senior Loan Agreement); (f) except for Permitted Stock, enter into any transaction or transactions with any director, officer, employee, or shareholder of products the Company, or any Affiliate or relative of the foregoing except upon terms that, in the opinion of the Holders, are fair and reasonable and that are, in any event, at least as favorable as would result in a comparable arm's-length transaction with a Person not a director, officer, employee, shareholder, or Affiliate of the Company or any Affiliate or related party of the foregoing, or advance any monies to any such Persons, except for travel advances in the ordinary course of business; (g) except for (i) Permitted Indebtedness (as defined in Section 11.1 of the Priority Note Agreement), and (ii) other capital contributions, permitted purchases, advances and loans permitted by the Senior Loan Agreement, acquire any debt or more than a 20% equity interest in any Person or establish or acquire a Subsidiary or make any additional capital contribution or purchase any additional equity in any Subsidiary or make any advances or loans to any Subsidiary or transfer any technology or assets to any Subsidiary; (h) allow the total voting securities aggregate par value of ACE the Capital Stock subject to the Warrant from time to time to exceed the price payable upon exercise of the Warrant, as adjusted from time to time; or (i) obligate itself or otherwise agree to take, permit or enter into any of its subsidiaries or any tender offer or exchange offer that if consummated would result the events described in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariessubsections (a) through (h) above.

Certain Actions. Except with respect to (a) Notwithstanding any other provisions in this Agreement Agree- ment, as long as any Preferred A Interest or Preferred B Interest remains issued and outstanding, the Executive Committee shall not approve, and the transactions contemplated herebyCompany shall not take, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicit, initiate or knowingly encourage of the submission following actions except with the approval of any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person unless GFC has designated two GFC Directors pursuant to a customary confidentiality agreement Section 4.13, the Chairman (or, if such office is vacant, at least one Management Director) and (y) participate at least one GFC Director: (i) any issuance or agreement to issue any profit share or interest (including any LLC Interests) of the Company or any of its Significant Subsidiaries or any securities or rights of any kind convertible into or exchangeable for such profit share or interest, or to issue any option, warrant, put, call or other arrangement of any kind to purchase or otherwise receive from the Company any such profit share or interest; (ii) any repurchase by the Company of any profit share or interest (including any LLC Interests); (iii) subject to clause (i) in discussions and negotiations regarding the proviso in Section 8.4, any approval or disapproval of any Transfer of any profit share or interest (including any LLC Interests) of the Company or any of its Significant Subsidiaries; (iv) any incurrence of indebtedness for borrowed money or other commitment or liability, issuance of guarantees, or granting of liens over assets of the Company or any of its Significant Subsidiaries (whether or not in connection with such Takeover Proposal. For purposes incurrence or issuance), in each case, in excess of, whether in a single transaction or a series of this Agreementrelated transactions, "Takeover Proposal" means $15 million, including without limitation any inquiryacquisition of any asset, proposal securities or offer business from any person Person in excess of, whether in a single transaction or a series of related transactions, $15 million, other than GPI relating to any direct of the type currently incurred or indirect acquisition or purchase of a substantial amount of assets of ACE and/or granted by GFC and its subsidiariesSubsidiaries, taken as a whole (other than the purchase of products case may be, in the ordinary course of business), or more than a 20% interest in the total voting securities of ACE or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiaries.;

Certain Actions. Except with respect Stockholder agrees that after any Request Event, subject to the terms and conditions of this Agreement and Agreement, for the transactions contemplated hereby, period ending seven years following the consummation of the Merger neither ACE it nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicit, initiate or knowingly encourage the submission of any Takeover Proposal its Affiliates (as such term is defined belowin Rule 12b-2 under the ▇▇▇▇ ▇▇▇) at such time, regardless of whether such person or (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it entity is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to an Affiliate on the date hereof, will, directly or indirectly, alone or in concert with others (xa) furnish information acquire, offer to acquire, or agree to acquire, by purchase, gift or otherwise, any Company Common Stock or direct or indirect rights, securities or options to acquire (through purchase, exchange, conversion or otherwise) any Company Common Stock (collectively, including such rights, securities and options, the "Voting Securities") or seek to advise, encourage or influence any person or entity with respect to the acquisition of Voting Securities of the Company, (b) make, or in any way participate in, any "solicitation" of "proxies" (as such party terms are defined in Regulation 14A promulgated by the Commission pursuant to Section 14 of the ▇▇▇▇ ▇▇▇) to vote, or communicate with or seek to advise, encourage or influence any person or entity with respect to the voting of, any Voting Securities, (c) form, join or in any way participate in a "group" within the meaning of Section 13(d)(3) of the 1934 Act with respect to any Voting Securities, (d) deposit any Voting Securities into a voting trust or subject any such securities to any arrangement or agreement with respect to the voting thereof, except as provided herein, (e) otherwise act to seek, or to assist or encourage in any respect any other person pursuant or entity to a customary confidentiality agreement and seek, to control or influence in any manner the management, Board of Directors, policies or affairs of the Company, or (yf) participate in discussions and negotiations regarding such Takeover Proposal. For purposes request that the Company waive or amend any provisions of this AgreementSection 8. Notwithstanding the foregoing, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken if Stockholder acquires Voting Securities as a whole (other than result of the purchase acquisition of products in the ordinary course an entity that beneficially owns Voting Securities, then Stockholder shall be permitted to dispose of business), or more than a 20% interest in the total voting securities of ACE or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariessuch Voting Securities as promptly as is practicable.

Certain Actions. Except as contemplated by this Agreement or the Exchange Agreement, without the prior written consent of Purchaser, which consent Purchaser shall not unreasonably withhold or delay, Seller shall not take any of the following actions with respect to this Agreement and the transactions contemplated herebyCompany or cause the Company to take any of the following actions: (a) issue or grant any equity securities, neither ACE nor options, convertible securities, warrants or calls or repurchase, redeem or otherwise acquire any Stockholder nor such securities of the Company or make or propose to make any affiliate thereof nor other change in the Company's capitalization; (b) merge or consolidate with any representatives thereof shall directly other Entity or indirectly (i) solicit, initiate acquire all or knowingly encourage substantially all of the submission assets or equity interests or business of any Takeover Proposal entity or person; (as defined belowc) or (ii) participate in incur any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action designed or reasonably likely to facilitate any inquiries or the making of any proposal that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person indebtedness for borrowed money other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products in the ordinary course of business)business consistent with past practice; (d) amend, exercise or more than a 20% interest in the total voting securities of ACE fail to exercise or waive any of its subsidiaries or the Company's rights under the Exchange Agreement or that certain Promissory Note in the principal amount of $300 million payable by the Company to Seller (the "ARCO Note") in a way which impairs or, with the passage of time, is reasonably likely to impair, the rights or benefits which Purchaser has or would otherwise have under this Agreement, the Exchange Agreement or the ARCO Note, either in Purchaser's capacity as a party to this Agreement or by virtue of Purchaser's ownership commencing on the Closing Date of the Shares; provided, however, nothing in this subparagraph (d) shall prohibit Seller from causing the Company to terminate the Exchange Agreement in the event that Purchaser terminates, or notifies Seller that Purchaser intends to terminate, this Agreement pursuant to Section 9.1(e) below; (e) accept or permit the Company to make any tender offer distribution or exchange offer that if consummated would result in any person beneficially owning 20% or more dividend to Seller as its sole shareholder of any class payments paid to the Company by Mobil under Section 16.02 of equity the Exchange Agreement; (f) except as required by order of a court of competent jurisdiction or by applicable securities laws or stock exchange requirements, make any public announcement or issue any press release with respect to this Agreement, the Exchange Agreement or the transactions contemplated under either such agreement, which materially differs from the form or content of ACE a public announcement which is mutually agreed upon by Seller and Purchaser; or (g) commit to do any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE or any of its subsidiariesthe foregoing.

Certain Actions. Except Until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 7.2, Naturo shall not: (i) take any action, or refrain from taking any action or permit any action to be taken or not taken (subject to a commercially reasonable efforts qualification), inconsistent with the provisions of this Agreement or that would reasonably be expected to materially impede the completion of the transactions contemplated hereby or would render, or that would reasonably be expected to render, any representation or warranty made by Naturo in this Agreement untrue or inaccurate in any material respect at any time on or before the Effective Date if then made or that would have a Material Adverse Effect on Naturo; (ii) except as described in the Naturo Disclosure Letter, issue, grant, deliver, sell or pledge, or agree to issue, grant, deliver, sell or pledge, any shares or other debt securities or equity securities of Naturo or its subsidiaries, or any rights convertible into or exchangeable or exercisable for, or otherwise evidencing a right to acquire, shares or other debt securities or equity securities of Naturo or its subsidiaries, other than the issuance of Naturo Shares issuable on the exercise of convertible securities existing as of the date hereof; and (iii) incur, create, assume or otherwise become liable for, any Indebtedness or any other Liability or obligation or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person, or make any loans, capital contributions, investments or advances or prepay any Indebtedness before its scheduled maturity or amend, terminate, waive or otherwise modify the definitive documentation in respect of any Indebtedness; (iv) sell, pledge, hypothecate, lease, license, sell and lease back, mortgage, dispose of or encumber or impose any Lien on or otherwise transfer, in whole or in part, any asset of Naturo with a book value or transaction value in excess of $25,000, individually or in the aggregate, except as otherwise contemplated in this Agreement; (v) acquire (by merger, amalgamation, consolidation or acquisition of shares or assets or otherwise), directly or indirectly, any assets, securities, properties, interests, business, corporation, partnership or other business organization or division thereof, or make any investment either by the purchase of securities, contribution of capital, property transfer, or purchase of any other property or assets of any other Person (including any subsidiary that is not wholly owned), or acquire any license rights or financial instrument of any other Person (including any subsidiary that is not wholly owned), other than as described in the Naturo Disclosure Letter; (vi) sell, assign, lease, exclusively license, abandon or permit to lapse, transfer or otherwise dispose of any Intellectual Property that is material to Naturo or its subsidiaries, other than the expiration of Intellectual Property at the end of its statutory term; (vii) adopt a plan of liquidation or resolution providing for the liquidation or dissolution, restructuring, recapitalization or reorganization of Naturo or any of its subsidiaries; or (viii) other than as is necessary to comply with Laws or any contract or Employee Plan in effect as of the date hereof: (A) ▇▇▇▇▇ to, or agree or promise to grant to, any current or former officer, director, manager, employee, independent contractor or consultant of Naturo or any of its subsidiaries an increase in salary or other form of compensation or benefits or grant any new form of compensation or benefits, except for wage and/or salary increases to non-directors, non-executives, and non-officers made in the ordinary course; (B) make any loan to any officer, employee, consultant or director of Naturo or any of its subsidiaries; (C) take any action with respect to this Agreement and the transactions contemplated herebygrant of, neither ACE nor any Stockholder nor any affiliate thereof nor any representatives thereof shall directly or indirectly (i) solicit, initiate or knowingly encourage the submission of any Takeover Proposal (as defined below) or (ii) participate in any discussions or negotiations regardingacceleration of, or furnish to increase of, any person any nonpublic information with respect severance, change of control, transaction, retention, bonus or termination pay to, or take enter into, establish, amend or terminate any employment agreement, service agreement, deferred compensation or other action designed similar agreement with, or reasonably likely to facilitate hire, or terminate employment or service (except for just cause or poor performance, and the backfill of those positions in the ordinary course) of, any inquiries current or the making former officer, director, employee, manager, independent contractor, or consultant of Naturo or any proposal of its subsidiaries; (D) establish, adopt, amend, modify or terminate any Employee Plan or create or enter into any plan, agreement, practice, program, policy, trust, fund or other arrangement that constitutes any Takeover Proposal, provided, however, that if, at any time prior to the Meeting the Board would be an Employee Plan if it were in existence as of Directors of ACE determines in good faith, after consultation with outside counsel, that it is reasonably advisable to do so in order to comply with its fiduciary duties to stockholders under applicable law, ACE may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to such party to any person pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any person other than GPI relating to any direct or indirect acquisition or purchase of a substantial amount of assets of ACE and/or its subsidiaries, taken as a whole (other than the purchase of products except for non-material amendments in the ordinary course of business)business that do not materially increase costs; (E) accelerate any right to any compensation or benefits under any Employee Plan; or (F) increase bonus levels or other benefits payable to any director, executive officer, consultant or more than a 20% interest in the total voting securities employee of ACE or any of its subsidiaries or any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of ACE or any of its subsidiaries or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving ACE Naturo or any of its subsidiaries.