Common use of Conduct of Business Prior to the Effective Time Clause in Contracts

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, the Company Parties shall, and shall cause the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except (i) as expressly contemplated or permitted by this Agreement Agreement, (ii) as required by any Law applicable to the Company or any of its Subsidiaries (including any COVID-19 Measures), or any COVID-19 Action, (iii) as set forth on Section 5.1(a) of the Company Disclosure Schedule or (iv) with the prior written consent of Parent, Parent (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), during the period from the date of this Agreement and continuing until to the Effective Time or the earlier termination of this Agreement, (A) the Company Parties shall, and shall cause the Company each of its Subsidiaries to, (ai) conduct their its business in all material respects in the ordinary course consistent with past practice and in compliance with all applicable Laws, (bii) use reasonable best efforts to (iI) maintain and preserve intact their its assets, properties, Contracts or other legally binding understandings, business organizations organization, rights, licenses, authorizations, franchises and business relationshipsother authorizations issued by Governmental Entities, (iiII) preserve its business relationships with Money Transfer Agents, banks, customers, vendors and others doing business with it and (III) retain the services of their its officers and key employees, and (iiiB) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company its Subsidiaries to, directly or indirectly: (i) cause (A) amend or permit otherwise change the Company’s certificate of incorporation or bylaws and (B) with respect to Subsidiaries of the Company, amend or otherwise change their applicable organizational documents in any amendmentmaterial respect, modificationand (C) adopt any rights plan, alteration “poison-pill” or rescission of any Company Entity Charter Documentsimilar plan or agreement (however structured or documented); (ii) makeadjust, declaresplit (including a reverse stock split), set aside combine or pay reclassify any dividends capital stock or other equity interest of the Company, or engage in any dividend or distributions (whether in that would change the form number of cashShares issuable upon conversion, equity exchange or property) in respect exercise of any issued and outstanding securities of their equity interests the Company (including the Company Option Awards, Company LTI Awards and Company Warrants) into a different number of Shares or a different class of securities, in each case except as may be required pursuant to the terms of the Company Warrants and that does not increase the aggregate Warrant Consideration payable hereunder, or enter into a plan of consolidation, merger, share exchange, share acquisition, reorganization or complete or partial liquidation with any person (other than dividends any consolidation, merger or distributions reorganization solely among wholly-owned Subsidiaries of the Company); (iii) issue, grant, sell, dispose of, redeem or repurchase any equity securities or equity-based award in the Company or any of its Subsidiaries, or securities convertible into, or exchangeable or exercisable for, any such equity securities or awards, or any rights of any kind to acquire any such equity securities or such convertible or exchangeable securities, other than (a) the issuance of Shares upon the exercise of Company Option Awards or Company Warrants outstanding as of the date hereof in accordance with their terms, (b) in connection with the vesting or settlement of any Pre-2023 Company Time-Based RSU Award, Pre-2023 Company Performance-Based RSU Award or other equity-based award of the Company (including the forfeiture thereof pursuant to the terms thereof or to satisfy any Tax withholding obligations) outstanding as of the date hereof in accordance with their terms, (c) by any wholly a wholly-owned Subsidiary of the Company to the Company or to another wholly wholly-owned Subsidiary of the Company or (d) issuances of Company LTI Awards or other equity-based awards to directors and other than employees pursuant to the payment terms of the Series A Quarterly Distribution Company Stock Plan that are either (as defined i) in connection with hiring, promotion and retention or (ii) in connection with annual equity awards for calendar years 2022 and 2023, to the extent the Closing has not occurred by such time, in each case of the foregoing clauses (i) and (ii) in the ordinary course of business consistent with past practice with vesting terms that are consistent with the vesting terms used for prior grants by the Company Partnership Agreement) in cash in lieu of “pay-accordance with, and subject to the limitations in-kind” distributions on the Preferred Units as set forth in , Section 5.1(b)(ii5.1(a)(iii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company EntitySchedule; (iv) issuedeclare, deliver set aside, make or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, pay any equity interests, Voting Debt dividend or other securitiesdistribution, securities convertible into equity interestspayable in cash, Voting Debt stock, property or otherwise, with respect to any Shares, Company Warrants or other securities, shares of capital stock or subscriptions, rights, warrants equity interests (except for any dividend or options distribution by a wholly-owned Subsidiary of the Company to acquire, the Company or other agreements or commitments another wholly-owned Subsidiary of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securitiesthe Company); (v) sell, exclusively license, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of (whether by merger, consolidation or sale of stock or assets or otherwise), any of its material properties or assets, rights or cancelbusinesses of the Company or its Subsidiaries (including any capital stock of any Subsidiaries), release in each case other than dispositions (1) of assets, rights or assign businesses in the ordinary course of business consistent with past practice or (2) dispositions of any material amount of indebtedness assets, rights or businesses or the abandonment or failure to maintain any Person Registered IP not exceeding $1,500,000 individually or any material claims against any Person$3,000,000 in the aggregate; (vi) incur acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any assets, in each case other than (a) purchases in the ordinary course of business consistent with past practice or (b) acquisitions not exceeding $2,500,000 individually or $7,500,000 in the aggregate; (vii) (a) incur, issue, assume or guarantee any indebtedness for borrowed money or assumeany debt securities in an aggregate amount exceeding $5,000,000 outstanding at one time and guarantees thereof, guaranteeexcept for (1) letters of credit and borrowings in the ordinary course of business under the Company’s Revolving Credit Facility (as defined and as set forth in the Credit Agreement) and (2) intercompany indebtedness among the Company and/or wholly-owned Subsidiaries, endorse or otherwise as an accommodation become responsible for the obligations of (b) enter into any Third Party swap or hedging transaction or other derivative agreement (other than forward Contracts entered into in the ordinary course of business); provided, that, for the avoidance of doubt, this clause (vii) shall not prohibit the continuing guarantee of existing indebtedness for borrowed money of Company or any Company of its Subsidiaries; (viii) make any loans, advances or capital contributions to, or investments in, any other person (other than to any wholly-owned Subsidiary of the Company) in excess of $1,000,000 individually or $2,000,000 in the aggregate; (ix) enter into any Contract involving or providing for the settlement of, or other arrangements with respect to, any Claims or threatened Claim (or series of related Claims) (a) with a Governmental Entity (except settlements, or other arrangements, for an immaterial monetary fine or immaterial restrictions or obligations), (b) that materially restricts or imposes material obligations on the Company or (c) that involves payments by the Company or any of its Subsidiaries after the date hereof in excess of $1,000,000 individually and $2,000,000 in the aggregate (excluding any amounts that may be paid under existing insurance policies) or that provides for an admission of fault or criminal liability, equitable remedies, or restriction in any material manner on the operations of the business of the Company and its Subsidiaries, including the use of any Money Transmitter License or the use, transfer or licensing of Intellectual Property by the Company or any of its Subsidiaries, provided that this clause (ix) shall not apply to any settlement of any suit or proceeding described in Section 5.10, which shall be governed by the provisions thereof; (x) except (A) in the ordinary course of business consistent with past practice or (B) as otherwise explicitly permitted pursuant to this Section 5.1(a): enter into, amend in any material respect, waive compliance with any material rights with respect to, or cancel or terminate any Material Contract or Contract which if entered into prior to the date hereof would be a Material Contract (with the Company to use reasonable best efforts to notify Parent promptly thereafter of any such actions (which notification may be provided by email or telephonically to employees or officers of Parent)); (xi) except for the expenditures contemplated by and consistent with the 2022 and 2023 capital expenditure budgets set forth on Section 5.1(a)(xi) of the Company Disclosure Schedule (the “Capital Expenditure Budget”), make, or commit to make, or otherwise authorize any capital expenditures in excess of $3,000,000 in 2022 or $3,000,000 in 2023; (xii) except in the ordinary course of business consistent with past practice if such indebtedness would not result or as otherwise required by the terms of any Plan or Contract existing as of the date hereof, as required by applicable Law or as disclosed in total indebtedness Section 5.1(a)(xii) of the Company and the Company Subsidiaries Disclosure Schedule: (on a) adopt, establish, enter into, amend or modify or agree to establish, amend or modify (or announce an intention to establish, amend or modify) or terminate any Plan or arrangement that would constitute a consolidated basis) Plan if in effect as of the Closing Date exceeding date hereof, (b) materially increase the Target Debt Capcompensation or benefits, including severance benefits, or create any new rights to material payments or benefits, including any severance, change in control, retention, or similar compensation or benefits, of any Company Employee; (c) take any action to accelerate the vesting or time of payment of any material compensation or benefit under the Company Stock Plan or awards granted thereunder; (d) loan or advance any money or other property to any present or former director, officer or employee of the Company or its Subsidiaries or (e) enter into any trust, annuity or insurance Contract or similar agreement or take any other action to fund or otherwise secure the payment of any compensation or benefit, or increase the funding obligation or contribution rate of any Plan subject to Title IV of ERISA; provided, however, that it shall not be a violation of this Section 5.1(a)(xii) if the Company or any of its Subsidiaries enters into a retention bonus agreement with a Company Employee after the date of this Agreement so long as the total cost to the Company and its Subsidiaries under all such retention bonus agreements with all such Company Employees does not exceed $5,000,000 in the aggregate and no retention bonus is made to an individual that could result in such payment being subject to a loss of deduction under Section 280G of the Code; (1xiii) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in make any material respectchanges in its methods, the terms of, any Material Contract, practices or (2) create, renew or amend any Contract orpolicies of financial accounting, except as may be required by applicable under Law, rule, regulation or U.S. GAAP in each case following consultation with the Company’s independent public accountants (with the Company to use reasonable best efforts to notify Parent of any such actions promptly thereafter (which notification may be provided by email or telephonically to employees or officers of Parent)); (a) make or change any material Tax election, (b) agree with tax authorities on the settlement of any material Tax examination, audit assessment or other binding obligation proceedings of the Company or any of its Subsidiaries, (c) enter into any closing agreement with respect to any material Tax or surrender any right to claim a material Tax refund, offset, or other reduction in liability, (d) consent to any extension or waiver of any limitation period with respect to any material Tax claim or assessment, (e) file an amended income or other material Tax Return, (f) change any annual Tax accounting period or adopt or change any method of Tax accounting principles or practices, (g) fail to pay any material Taxes as they become due and payable, or (h) enter into any Tax sharing, Tax indemnity or Tax allocation agreement or similar Contract or arrangement, in each case, that includes a party other than the Company Entity containing or any of its Subsidiaries; (xv) fail to use its reasonable best efforts to maintain in full force and effect any material existing insurance policies of the Company and its Subsidiaries or to replace such material insurance policies with comparable insurance policies covering the Company, its Subsidiaries and their respective properties, assets and businesses; (xvi) sell, transfer, lease, pledge or otherwise encumber or subject to any Lien, abandon, cancel, let lapse or convey or dispose of any Intellectual Property, except for (A) where the Company has, in its reasonable business judgment, decided to cancel, abandon, allow to lapse or not renew any restriction on the ability of a Company Entity to conduct its business as it is presently being conductedRegistered IP, or (B) any restriction on the ability of a Company Entity to engage in any type of activity Permitted Liens or business; (viiiC) make any capital expenditurespledges, (other than drydocking capital expenditures) capital additions or capital improvements except non-exclusive licenses in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are materialwould not, individually or in the aggregate, reasonably be expected to be material to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or electionsCompany; (xvii) file effectuate a “plant closing,” “mass layoff” (each as defined in the WARN Act) or amend other employee layoff event (as defined in the WARN Act) affecting in whole or in part any Tax Returnsite of employment, make facility, operating unit or change employee; (xviii) fail to use reasonable best efforts to maintain in full force and effect any Tax election, or settle or compromise any Tax liability, other than as Money Transmitter License required by Lawto continue to operate its business in the ordinary course in all material respects; or (xviiixix) propose, agree to taketo, or make any commitment to to, take any of the actions prohibited by this Section 5.1(b5.1(a). (cb) Except as set forth Nothing contained in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts is intended to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of give Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of their equity interests or any other securities thereof or any rightsthis Agreement, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in complete control and supervision over its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in and its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d)Subsidiaries’ respective operations.

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with 6.1 Conduct of Business of the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during Company. During the period from commencing on the date of this Agreement hereof and continuing until the Effective Time or the earlier termination of this AgreementTime, the Company Parties shalland the Sole Stockholder agree that the Company, and shall cause except as otherwise expressly contemplated by this Agreement or agreed to in writing by the Company Subsidiaries to, Parent: (a) conduct their will carry on its business only in the ordinary course and consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby.practice; (b) During the period from the date will not declare or pay any dividend on or make any other distribution (however characterized) in respect of this Agreement and continuing until the Effective Time or the earlier termination shares of this Agreement, except its capital stock; (1c) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall will not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, redeem or repurchase, or agree to redeem or otherwise acquirerepurchase, directly or indirectly, any shares of their equity interests its capital stock; (d) will not amend its Certificate of Incorporation or By-Laws; (e) will not issue, or agree to issue, any shares of its capital stock, or any other securities thereof or any rightsoptions, warrants or options other rights to acquire shares of its capital stock, or any such equity interests securities convertible into or other securitiesexchangeable for shares of its capital stock; (iiif) grant will not combine, split or otherwise reclassify any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value shares of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entityits capital stock; (ivg) issuewill not form any subsidiaries; (h) will use its best efforts to preserve intact its present business organization, deliver keep available the services of its officers and key employees and preserve its relationships with clients and others having business dealings with it to the end that its goodwill and ongoing business shall not be materially impaired at the Effective Time; (i) will not (i) make any capital expenditures individually or sell in the aggregate in excess of $10,000, (ii) enter into any license, distribution, OEM, reseller, joint venture or authorize other similar agreement other than in the ordinary course, (iii) enter into or propose the issuance, delivery or sale terminate any lease of, or purchase or propose the purchase ofsell, any equity interestsreal property, Voting Debt (iv) enter into any leases of personal property involving individually or other securitiesin the aggregate in excess of $10,000 annually, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sellincur or guarantee any additional indebtedness for borrowed money other than in the ordinary course, transfer, pledge, lease, license(vi) create or permit to become effective any security interest, mortgage, encumber lien, charge or otherwise dispose of other encumbrance on any of its material properties or assets, or cancel, release or assign (vii) enter into any material amount agreement to do any of indebtedness to any Person or any material claims against any Personthe foregoing; (vij) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would will not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew adopt or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or Plan for the benefit of any Covered Employee Employees, or increase the salary or other compensation (including, without limitation, bonuses or newly hired employees)severance compensation) payable or to become payable to its Employees or accelerate, (iv) accelerate amend or change the period of exercisability or the vesting schedule of any equity-based compensation options or other long-term incentive compensation restricted stock granted under any Company Benefit Plansstock option plan or agreements or enter into any agreement to do any of the foregoing, except as specifically required by the terms of such plans or agreements; (vk) will not accelerate receivables or delay payables; (Al) hire employees in will promptly advise the position Parent of Vice President or abovethe commencement of, or threat of (Bto the extent that such threat comes to the knowledge of the Company or the Sole Stockholder) terminate any claim, action, suit, proceeding or investigation against, relating to or involving the employment Company or any of its respective officers, employees, agents or consultants in connection with their businesses or the transactions contemplated hereby; (m) will use its commercially reasonable efforts to maintain in full force and effect all insurance policies maintained by the Company on the date hereof; (n) will not enter into any employee in agreement to dissolve, merge, consolidate or, sell any material assets of the position of Vice President or above Company (other than due to terminations for cause), (viin the ordinary course) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any Person corporation, partnership or other business organization or division, or otherwise acquire or agree to acquire any assets which are material, individually or in excess of $10,000 in the aggregate, ; and (o) will not make any payments to officers or directors other than in the Company or the Company Entities (taken as a whole)ordinary course; (xip) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) will not enter into any new line of business agreements with contractors or change in consultants (or amend or authorize additional work orders with respect to any material respect its business as currently conducted;such existing agreements); and (xiiiq) transfer ownershipwill not change, accelerate or grant any license or other rightsalter, to any Person of or in respect each case, the payment terms of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered existing contract or agreement nor enter into in the ordinary course of business any contract or agreement with payment terms (including timing) not materially consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) 6.2 Conduct of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent Business of the Company, which shall not be unreasonably withheld, delayed or conditioned, during Acquisition Corp. During the period from commencing on the date of this Agreement hereof and continuing until the Effective Time or the earlier termination of this AgreementTime, Parent shall, and Acquisition Corp. shall cause its Subsidiaries to, (a) conduct their business not engage in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals activities of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered nature except as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated permitted herein, set forth in Section 6.1 of the Company Schedule of Exceptions, or permitted required by this Agreement or with the prior written consent of ParentLaw, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until Execution Date through the Effective Time or the earlier termination of this AgreementAgreement pursuant to its terms, the Company Parties shall, and shall cause the Company its Subsidiaries to, (a) conduct their its business in all material respects in the ordinary course of its business consistent with past practice and in compliance with all applicable Lawsand, (b) to the extent consistent therewith, use its reasonable best efforts to (i) maintain and preserve substantially intact their its business organizations organization and the goodwill of those having business relationships, (ii) retain relationships with it. Without limiting the services of their officers and employeesforegoing, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions except as otherwise expressly contemplated hereby or (ii) perform their covenants and agreements under by this Agreement or to consummate as set forth in Section 6.1 of the transactions contemplated hereby. (b) During the period Company Schedule of Exceptions, or required by Law, from the date of this Agreement and continuing until Execution Date through the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditionedAgreement pursuant to its terms, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly without the prior written consent of Parent (not to be unreasonably withheld or indirectly:delayed): (ia) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declareDeclare, set aside or pay any dividends on or make any other distributions (whether in the form of cash, stock, equity securities or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of their equity interestsany other securities in respect of, in lieu of or repurchasein substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting any Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of their equity interests its capital stock or the capital stock of its Subsidiaries, other than net issuances of Company RSUs upon the vesting thereof, repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any other securities thereof employee or upon the resignation of any director or consultant, in each case, pursuant to stock option, RSU or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements or commitments obligating it to issue any such equity interests securities or rights, other than: (A) issuances of Company Common Stock upon the exercise of Company Options, the vesting of Company RSUs, the exercise of Company Warrants or other securitiesrights of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B), (C) or (D) hereof, (B) grants of Company Options with Ordinary Course Pricing (as defined below) or Company RSUs made in the ordinary course of business consistent with past practice and with Ordinary Course Vesting (as defined below) to new Company employees under the Company’s Amended and Restated 2009 Stock Incentive Plan (the “2009 Plan”), (C) grants of Company Options with Ordinary Course Pricing (as defined below) or Company RSUs to existing Company employees (other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; to (i) directors, (ii) executive officers and (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by disqualified individuals within the SEC; (iv) adopt or enter into a plan meaning of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any Section 280G of the actions prohibited by this Section 5.1(d).Code if the issuance to such persons

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated permitted herein, set forth in Section 6.1 of the Company Schedule of Exceptions, or permitted required by this Agreement or with the prior written consent of ParentLaw, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until Execution Date through the Effective Time or the earlier termination of this AgreementAgreement pursuant to its terms, the Company Parties shall, and shall cause the Company its Subsidiaries to, (a) conduct their its business in all material respects in the ordinary course of its business consistent with past practice and in compliance with all applicable Lawsand, (b) to the extent consistent therewith, use its reasonable best efforts to (i) maintain and preserve substantially intact their its business organizations organization and the goodwill of those having business relationships, (ii) retain relationships with it. Without limiting the services of their officers and employeesforegoing, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions except as otherwise expressly contemplated hereby or (ii) perform their covenants and agreements under by this Agreement or to consummate as set forth in Section 6.1 of the transactions contemplated hereby. (b) During the period Company Schedule of Exceptions, or required by Law, from the date of this Agreement and continuing until Execution Date through the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditionedAgreement pursuant to its terms, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectlywithout the prior written consent of Parent: (ia) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declareDeclare, set aside or pay any dividends on or make any other distributions (whether in the form of cash, stock, equity securities or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of their equity interestsany other securities in respect of, in lieu of or repurchasein substitution for any capital stock, other than any such transaction by a wholly-owned Subsidiary of it that remains a wholly-owned Subsidiary of it after consummation of such transaction in the ordinary course of business; provided, however, that nothing herein shall be construed as prohibiting the Company from granting Company Options that are Ordinary Course Grants (as defined below); (b) Purchase, redeem or otherwise acquire, directly or indirectly, any shares of their equity interests its capital stock or the capital stock of its Subsidiaries, other than repurchases of unvested shares at cost or for de minimis consideration in connection with either the termination of the employment relationship with any other securities thereof employee or upon the resignation of any director or consultant, in each case, pursuant to stock option or purchase agreements in effect on the date hereof; (c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock, or subscriptions, rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement capital stock or adopt any material change in its Tax accounting or financial accounting methodssecurities convertible into shares of capital stock, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan other agreements or commitments obligating it to issue any such securities or rights, other than: (A) issuances of complete Company Common Stock upon the exercise of Company Options, Company Warrants or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any other rights of the actions prohibited by Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (B) or (C) hereof, (B) grants of stock options to purchase Company Common Stock granted in the ordinary course of business consistent with past practice and on Ordinary Course Terms (as defined below) to new Company employees under the Company Option Plans outstanding on the date hereof, (C) grants of stock options to purchase Company Common Stock granted to existing Company employees (other than to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Terms, and (D) subject to Section 3.7(b), issuances of Company Common Stock pursuant to the Company ESPP; provided, however, that the stock option grants pursuant to clause (C) shall not exceed grants of options to acquire 25,000 shares of Company Common Stock to all such individuals in the aggregate (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 5.1(d).6.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that is no less than the current market price at the time of grant of a share of Company Common Stock and (ii) a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date of grant, and one-forty-eighth (1/48) on each monthly anniversary of the date of grant thereafter;

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, the Company Parties shallshall carry on its business in, and shall cause the Company Subsidiaries tonot enter into any material transaction other than in accordance with, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Lawsand, (b) to the extent consistent therewith, use its reasonable best efforts to preserve intact its current business organization, keep available the services of its current employees and preserve its relationships with Persons having dealings with it. In connection therewith, the Company shall not (i) maintain and preserve intact their business organizations and business relationshipstransfer or cause to be transferred any employee or agent of the Company to any Affiliates of the Company or any Stockholder, (ii) retain permit any Affiliate of the services Company or of their officers and employeesany Stockholder to offer employment to any such employee or agent, and or (iii) maintain their rights and Permitsotherwise attempt to persuade any such employee or agent to terminate his or her relationship with the Company other than for reasons that are in the best interests of the Company. Without limiting the generality of the foregoing, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted contemplated by this Agreement, or (3) with the Company shall not, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit 7.6.1 take any amendment, modification, alteration or rescission of any Company Entity Charter Documentaction described in Section 5.16; (ii) make7.6.2 grant any additional options, declareissue, set aside or pay any dividends or distributions (whether in the form deliver, sell, pledge, dispose of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly encumber any shares of its capital stock or indirectly, any of their equity interests or any other securities thereof or (including any rights, warrants or options to acquire any such equity interests shares of its capital stock or other securities; (iii) grant ); or issue any optionscertificate evidencing any shares of Company Common Stock in replacement for any certificate that has been lost, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests destroyed or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries)stolen, except in upon receipt from the ordinary course issuee thereof of business consistent with past practice if such indebtedness would not result in total indebtedness indemnification of the Company in form and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Capsubstance satisfactory to Parent; (1) 7.6.3 amend its Certificate of Incorporation or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or businessBylaws; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) 7.6.4 acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets ofof or equity in, or by any other manner, any business or any Person or otherwise acquire division thereof; 7.6.5 make or agree to acquire incur any assets which are materialnew capital expenditure or expenditures which, individually or individually, is in excess of $10,000 or, in the aggregate, to the Company or the Company Entities (taken as a whole)are in excess of $50,000; 7.6.6 pay, discharge or satisfy (xii) implement any claim by or adopt liability or obligation owing to, any material change in its Tax accounting present, former or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by purported holder of any securities of the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownershipCompany, or grant (ii) any license other claim, liability or other rights, to any Person of or in respect of any material Intellectual Property, obligation other than grants of non-exclusive licenses pursuant to license agreements entered into the payment, discharge or satisfaction thereof in the ordinary course of business consistent with past practice; in each case whether such claim, liability or obligation is absolute, accrued, asserted or unasserted, contingent or otherwise; (xiv) make 7.6.7 alter through merger, liquidation, reorganization, restructuring or in any material investment either by purchase of stock other fashion its corporate structure; 7.6.8 enter into or securities, contributions to capital, property transfersadopt, or purchase of amend, any property bonus, incentive, deferred compensation, insurance, medical, hospital, disability or assets of any other Person; (xv) take any action to exempt any Third Party severance plan, agreement or any action taken by any Third Party from any Takeover Statute arrangement or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file enter into or amend any Tax Returnemployee benefit plan or employment, make consulting or change any Tax election, or settle or compromise any Tax liabilitymanagement agreement, other than as required by Lawany such amendment to an employee benefit plan that is made to maintain the qualified status of such plan or its continued compliance with applicable law; or (xviii) propose, agree or pay or commit to takepay any bonus to any officer or employee of the Company, or make any commitment to take other material change in the compensation of its employees; 7.6.9 modify in any material respect any of the actions prohibited Company Agreements; or enter into any agreement, understanding, obligation or commitment; or incur any indebtedness or obligation, of the type that would have been required to be listed in Schedule 5.17 if in existence on the date hereof; or enter into any contract that provides for any approval or consent by any Person to the transactions contemplated by this Section 5.1(b).Agreement; (c) Except as set forth in Section 5.1(c) of 7.6.10 enter into any other transaction affecting the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent business of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business other than in the ordinary course of business consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay 7.6.11 file any dividends or distributions (whether in the form of cash, equity or property) Tax Return in respect of any of their equity interests (its Federal income Taxes or state income or franchise Taxes; 7.6.12 with respect to Taxes other than dividends Federal income Taxes or distributions by state income or franchise Taxes, prepare or file any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interestsTax Return inconsistent with prior practice, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire on any such equity interests or other securitiesTax Return, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement take any position, make any election, or adopt any material change method that is inconsistent with positions taken, elections made or methods used in its preparing or filing similar Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change Returns in its Tax methods, principles or electionsprior periods; or (vi) propose, agree to take, or make any commitment to 7.6.13 take any of action that might preclude Parent from accounting for the actions prohibited by this Section 5.1(d)Merger as a pooling-of-interests.

Conduct of Business Prior to the Effective Time. (a) Except as expressly permitted herein, set forth in Section 5.1 of the Company Disclosure Schedule, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall conduct its business in all material respects in the ordinary course of its business consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to maintain and preserve substantially intact its business organization and the goodwill of those having business relationships with it. Without limiting the foregoing, and except as otherwise expressly contemplated or permitted by this Agreement or with as set forth in Section 5.1 of the Company Disclosure Schedule, or required by Law, from the Execution Date through the Effective Time or the termination of this Agreement pursuant to its terms, the Company shall not, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, the Company Parties shall, and shall cause the Company Subsidiaries to, : (a) conduct their business in Cause, permit or propose any material amendments to the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect Company Certificate or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby.Company Bylaws; (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit Amend any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission material term of any outstanding Company Entity Charter DocumentCapital Stock; (iic) make, declare, set aside Merge or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or consolidate with any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securitiesPerson; (iiid) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issueIssue, deliver or sell sell, or authorize or propose the issuance, delivery or sale of, any shares of Company Capital Stock or purchase or propose the purchase other equity interests of, or any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securitiesinto, or subscriptions, any rights, warrants warrants, calls, subscriptions or options to acquire, or other agreements or commitments of any character obligating it to issue, any such shares, equity interests, Voting Debtor convertible securities, convertible securities other than: (A) issuances of Company Capital Stock upon the exercise of Company Options, Company Warrants or other securities; rights of the Company existing on the date hereof in accordance with their present terms or granted pursuant to clauses (vB) sellor (C) hereof, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose (B) grants of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness stock options to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any purchase Company Subsidiaries), except Common Stock granted in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of and on Ordinary Course Terms (as defined below) to new Company employees under the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction Option Plans outstanding on the ability date hereof, and (C) grants of a stock options to purchase Company Entity Common Stock granted to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a existing Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, employees (other than drydocking capital expenditures) capital additions or capital improvements except to directors and officers), under the Company Option Plans outstanding on the date hereof in the ordinary course of business consistent with past practice in amounts connection with annual compensation reviews or ordinary course promotions and in each case on Ordinary Course Terms (the grants described, and subject to the limitations, in clauses (B) and (C), the “Ordinary Course Grants”, and for purposes of this Section 5.1, “Ordinary Course Terms” shall mean options to purchase Company Common Stock with the following terms (i) a per share exercise price that do not exceed $3.0 million individually or $6.0 million in is no less than the aggregate; current market price at the time of grant of a share of Company Common Stock and (ixii) except as required by existing written Contracts or Company Benefit Plans existing as a vesting schedule no more favorable than one-quarter (1/4) on the one-year anniversary of the date hereofof grant, and one-forty-eighth (i1/48) increase in any manner the compensation or benefits on each monthly anniversary of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stockgrant thereafter; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or Agreement, the Company shall carry on its business in, and not enter into any material transaction other than in accordance with, the ordinary course consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to preserve intact its current business organization, keep available the services of its current officers and preserve its relationships with customers, suppliers and others having business dealings with it (except, in each case, -43- 48 with the prior written consent of Parent). Without limiting the generality of the foregoing, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of except as expressly contemplated by this Agreement, the Company Parties shallshall not, and shall cause the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (iiA) make, declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions (whether in the form of cash, equity or property) in respect of of, any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter)its capital stock, or otherwise make any payments to its Shareholders in their capacity as such, (B) split, combine or reclassify any of their equity interestsits capital stock or issue, sell or repurchaseauthorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock (other than any issuances of its securities upon the exercise of any outstanding options to purchase such securities or upon the conversion of any outstanding convertible securities that are convertible into such securities) or (C) purchase, redeem or otherwise acquire, directly or indirectly, acquire any shares of their equity interests capital stock of the Company or any other securities thereof thereof; (ii) except as set forth in clause (i) above, issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock or other securities (including, without limitation, any rights, warrants or options to acquire any such equity interests shares of its capital stock or other securities); (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value amend its Articles of equity interests Incorporation or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company EntityBylaws; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets ofof or equity in, or by any other manner, any business or any Person corporation, partnership, association or otherwise acquire other business organization or agree division thereof; (v) incur or assume any indebtedness for borrowed money, enter into (as lessee) any capitalized lease obligation, guarantee any such indebtedness or obligation, issue or sell any debt securities, guarantee any debt securities of others or make any loans, advances or capital contributions to, or investments in, any other Person, except the incurrence and/or guarantee of indebtedness to acquire fund working capital; (vi) make or incur any assets which are materialnew capital expenditure or expenditures which, individually or individually, is in excess of $50,000 or, in the aggregate, to the Company or the Company Entities (taken as a whole)are in excess of $200,000; (xivii) implement pay, discharge or adopt satisfy any material change in its Tax accounting claims, liabilities or financial accounting methodsobligations (absolute, principles accrued, asserted or practicesunasserted, except as may be required by applicable Law, GAAP, Regulation S-X contingent or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Propertyotherwise), other than grants of non-exclusive licenses pursuant to license agreements entered into the payment, discharge or satisfaction thereof in the ordinary course of business consistent with past practice; (viii) alter through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; (ix) enter into or adopt, or amend, any bonus, incentive, deferred compensation, insurance, medical, hospital, disability or severance plan, agreement or arrangement or enter into or amend any employee benefit plan or employment, consulting or management agreement, other than any such amendment to an employee benefit plan that is made to maintain the qualified status of such plan or its continued compliance with applicable law; (x) make any change in accounting practices or policies applied in the preparation of the financial statements referred to in SECTION 5.4, except as required by generally accepted accounting principles; (xi) modify any of the agreements, understandings, obligations, commitments, indebtedness or other obligations set forth in any of the Schedules to this Agreement, enter into any agreement, understanding, obligation or commitment, or incur any indebtedness or obligation, of the type that would have been required to be listed on SCHEDULE 5.19 if in existence on the date hereof, or enter into any contract which requires any approval or consent by any other Person to the transactions contemplated by this Agreement; (xii) pay or commit to pay any bonus to any officer or employee of the Company or make any other material change in the compensation of its employees; (xiii) make any change in its business or operations or make any expenditure which shall exceed the amount, as set forth in SCHEDULE 5.25, budgeted therefor; (xiv) make any material investment either by purchase of stock capital expenditure or securitiesenter into any contract or commitment therefor, contributions other than capital expenditures or commitments for capital expenditures referred to capital, property transfers, or purchase of any property or assets of any other Personin the applicable budget contained in SCHEDULE 5.25; (xv) take enter into any action contract for the purchase of real property or for the sale of any Owned Real Property or exercise any option to exempt any Third Party purchase real property listed in SCHEDULE 5.10 or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements option to extend a lease listed in place with any Third PartiesSCHEDULE 5.11; (xvi) make sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any material change Encumbrance on, any of the Company's assets, other than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in its Tax methods, principles or electionsthe ordinary course of the Company's business consistent with past practice and other than Permitted Encumbrances; (xvii) cancel any debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in the ordinary course of the Company's business consistent with past practice; (xviii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of its business consistent with past practice; (xix) delay or accelerate payment of any account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of its business consistent with past practice; (xx) allow the levels of raw materials, supplies, work-in-process or other materials included in its inventory to vary in any material respect from the levels customarily maintained in its business; (xxi) enter into any transaction with Affiliates, other than on an arms' length basis; (xxii) prepare or file or amend any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make or change any Tax election, or settle adopt any method that is inconsistent with positions taken, elections made or compromise methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods after the Closing Date or accelerating deductions to periods prior to the Closing Date); (xxiii) take any Tax liabilitymaterial action in respect of the intellectual property rights of the Company, other than as required by Lawincluding in respect of patents or patent applications, except in the ordinary course of business; or (xviiixxiv) propose, agree to take, or make enter into any commitment to take any of other transaction affecting the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent business of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business other than in the ordinary course of business consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, the Company Parties shallshall carry on its business in, and shall cause the Company Subsidiaries tonot enter into any material transaction other than in accordance with, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Lawsand, (b) to the extent consistent therewith, use its reasonable best efforts to preserve intact its current business organization, keep available the services of its current employees and preserve its relationships with Persons having dealings with it. In connection therewith, the Company shall not (i) maintain and preserve intact their business organizations and business relationshipstransfer or cause to be transferred any employee or agent of the Company to any Affiliates of the Company or any Stockholder, (ii) retain permit any Affiliate of the services Company or of their officers and employeesany Stockholder to offer employment to any such employee or agent, and or (iii) maintain their rights and Permitsotherwise attempt to persuade any such employee or agent to terminate his or her relationship with the Company other than for reasons that are in the best interests of the Company. Without limiting the generality of the foregoing, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted contemplated by this Agreement, or (3) with the Company shall not, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit : 7.6.1 take any action of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Documentnature described in Section 5.16; (ii) make7.6.2 grant any additional options, declareissue, set aside or pay any dividends or distributions (whether in the form deliver, sell, pledge, dispose of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly encumber any shares of its capital stock or indirectly, any of their equity interests or any other securities thereof or (including any rights, warrants or options to acquire any such equity interests shares of its capital stock or other securities; (iii) grant ); or issue any optionscertificate evidencing any shares of Company Common Stock in replacement for any certificate that has been lost, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests destroyed or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries)stolen, except in upon receipt from the ordinary course issuee thereof of business consistent with past practice if such indebtedness would not result in total indebtedness indemnification of the Company in form and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Capsubstance satisfactory to Parent; (1) 7.6.3 amend its Articles of Incorporation or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or businessBylaws; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) 7.6.4 acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets ofof or equity in, or by any other manner, any business or any Person or otherwise acquire division thereof; 7.6.5 make or agree to acquire incur any assets which are materialnew capital expenditure or expenditures which, individually or individually, is in excess of $10,000 or, in the aggregate, to the Company or the Company Entities (taken as a whole)are in excess of $50,000; 7.6.6 pay, discharge or satisfy (xii) implement any claim by or adopt liability or obligation owing to, any material change in its Tax accounting present, former or financial accounting methodspurported holder of any securities of the Company, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by (ii) the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownershipBridge Note Obligations, or grant (ii) any license other claim, liability or other rights, to any Person of or in respect of any material Intellectual Property, obligation other than grants of non-exclusive licenses pursuant to license agreements entered into the payment, discharge or satisfaction thereof in the ordinary course of business consistent with past practice; in each case whether such claim, liability or obligation is absolute, accrued, asserted or unasserted, contingent or otherwise; (xiv) make 7.6.7 alter through merger, liquidation, reorganization, restructuring or in any material investment either by purchase of stock other fashion its corporate structure; 7.6.8 enter into or securities, contributions to capital, property transfersadopt, or purchase of amend, any property bonus, incentive, deferred compensation, insurance, medical, hospital, disability or assets of any other Person; (xv) take any action to exempt any Third Party severance plan, agreement or any action taken by any Third Party from any Takeover Statute arrangement or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file enter into or amend any Tax Returnemployee benefit plan or employment, make consulting or change any Tax election, or settle or compromise any Tax liabilitymanagement agreement, other than as required by Law; orthan (xviii) propose, agree to take, or make 7.6.9 modify in any commitment to take material respect any of the actions prohibited Company Agreements; or enter into any agreement, understanding, obligation or commitment; or incur any indebtedness or obligation, of the type that would have been required to be listed in Schedule 5.17 if in existence on the date hereof; or enter into any contract that provides for any approval or consent by any Person to the transactions contemplated by this Section 5.1(b).Agreement; (c) Except as set forth in Section 5.1(c) of 7.6.10 enter into any other transaction affecting the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent business of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business other than in the ordinary course of business consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay 7.6.11 file any dividends or distributions (whether in the form of cash, equity or property) Tax Return in respect of any of their equity interests (its Federal income Taxes or state income or franchise Taxes; or 7.6.12 with respect to Taxes other than dividends Federal income Taxes or distributions by state income or franchise Taxes, prepare or file any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interestsTax Return inconsistent with prior practice, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire on any such equity interests or other securitiesTax Return, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement take any position, make any election, or adopt any material change method that is inconsistent with positions taken, elections made or methods used in its preparing or filing similar Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC;Returns in prior periods. (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to 7.6.13 take any of action that might preclude Parent from accounting for the actions prohibited by this Section 5.1(d)Merger as a pooling-of-interests.

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditionedThe Company covenants and agrees that, during the period from the date of this Agreement and continuing hereof until the Effective Time Time, except as contemplated by this Agreement or as set forth in the earlier termination corresponding subsection of this AgreementSection 6.1 of the Company Disclosure Schedule, or unless ANM otherwise agrees in writing, the business of the Company, the Company Parties shallSubsidiaries and the Nonprofit Organizations, and shall cause the use, operation, maintenance and repair of their respective assets, including the Real Property, will be conducted in the Ordinary Course of Business and the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) will use its reasonable best efforts to (i) maintain preserve substantially intact its business organization, material insurance policies and preserve intact their business organizations and business relationshipsgoodwill, (ii) retain to keep available the services of their its present officers and other key employees and to preserve its present relationships with suppliers, employees, tenants, licensees and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from all other Persons with which it has significant business relations. Between the date of this Agreement and continuing until the Effective Time or the earlier termination of this AgreementTime, except (1) as otherwise expressly contemplated by this Agreement or as set forth in the corresponding subsection of Section 5.1(b) 6.1 of the Company Disclosure LetterSchedule, (2) as expressly permitted by this Agreementneither the Company, or (3) with any Company Subsidiary nor any Nonprofit Organization will without the prior written consent of Parent, ANM (which consent shall will not be unreasonably withheldwithheld or delayed, delayed or conditionedprovided, however, that ANM will be entitled to take into account its plans for the Company Parties shall not, and shall after the Effective Time in determining whether or not permit any of the Company Subsidiaries to, directly or indirectly:to grant such consent): (ia) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchasepurchase, redeem or otherwise acquire its capital stock, or issue, grant, sell, transfer, authorize or encumber any shares of capital stock, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, directly any shares of any class or indirectlyseries of its capital stock, or enter into any of their equity interests agreement, understanding or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award arrangement with respect to the Units under voting of its capital stock; provided, however, that ANM hereby consents to the issuance of the Change in Control Shares after the date of this Agreement and at or before the Effective Time; (b) (i) increase the compensation payable or to become payable to or fringe benefits of any current or former directors, officers, employees, independent contracts or consultants of the Company, the Company Subsidiaries or the Nonprofit Organizations (collectively, “Company Personnel”), except for increases in salary or wages in the Ordinary Course of Business to employees who are not executive officers or directors or the payment of accrued but unpaid bonuses, (ii) grant new bonuses or grant any severance or termination or transition pay to Company Personnel, (iii) establish, adopt or enter into, amend or terminate any Benefit Plan or otherwiseany plan, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issueagreement, deliver or sell or authorize or propose the issuancearrangement, delivery or sale ofprogram, or purchase or propose the purchase ofpolicy, any equity intereststrust, Voting Debt fund or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating arrangement that would be a Benefit Plan if it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except were in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) existence as of the Closing Date exceeding the Target Debt Cap; date of this Agreement (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate hire, or enter any agreement to hire, any employee on a full-time, part-time (other than temporary employees hired in the vesting Ordinary Course of Business), consulting or other basis for annual compensation in excess of $25,000; or (v) enter into, renew, extend, amend, modify, terminate, cancel, waive, release or assign any employment or independent contractor agreements with any current employees of the Company or any Company Subsidiary or Nonprofit Organization; (c) (i) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure, management structure or, if applicable, ownership of the Company, any Company Subsidiary or any Nonprofit Organization, (ii) acquire or agree to acquire (by merger, consolidation, acquisition of assets or otherwise) any Person or material assets, or any voting or non-voting equity securities or similar ownership interests in any Person, (iii) split, combine, subdivide or reclassify any shares of any equity-based compensation class or series of its capital stock or (iv) declare, set aside, make or pay any dividend or make other distribution payable in cash, stock, property or otherwise to holders of any class or series of its capital stock; (d) enter into, renew, extend or amend or modify in any material respect or terminate, cancel, waive, release or assign any contract or agreement which is or, if applicable, would be a Material Contract; (e) except as disclosed in the Company’s, the Company Subsidiaries’ and the Nonprofit Organizations’ capital expenditure budgets for the current fiscal year, true, correct and complete copies of which have been provided to ANM, commit to any capital expenditures in excess of the Material Amount; (f) manage the working capital of the Company, the Company Subsidiaries and the Nonprofit Organizations (including, but not limited to, accounts receivable and accounts payable) outside of the Ordinary Course of Business; (g) make any loans, any advances (other than travel advances to employees in the Ordinary Course of Business) or any capital contributions to, or any investments in, any other Person; (h) (i) incur or modify Indebtedness owed by the Company, any Company Subsidiary or any Nonprofit Organization, guarantee any Indebtedness of another Person or cancel any Indebtedness or other long-term incentive compensation under obligation owed to the Company, any Company Benefit PlansSubsidiary or any Nonprofit Organization, (ii) redeem, repurchase, prepay or otherwise acquire any Indebtedness of the Company, any Company Subsidiary or any Nonprofit Organization or (iii) enter into hedging, swap or factoring arrangements or contracts or other similar financing instruments; (i) amend any provisions of the articles of organization or bylaws or other organizational documents of the Company, any Company Subsidiaries or any Nonprofit Organizations; (j) transfer, lease, license, sublicense, assign, sell, sublease, mortgage, pledge, or otherwise dispose of, in whole or in part, or incur or subject any Encumbrance on, any property or assets, (including, without limitation, any interest in any Real Property), in each case other than in the Ordinary Course of Business, or amend in any material respect, extend or terminate any Real Property Lease; (k) other than with respect to purchase orders in the Ordinary Course of Business, make any payments in excess of the Material Amount or incur any commitment in excess of the Material Amount; (l) commence, undertake or engage in any new line of business; (m) permit any insurance policy or arrangement naming or providing for the Company, any Company Subsidiary or any Nonprofit Organization as a beneficiary or a loss payable payee to be cancelled or terminated or impaired in any way; (n) settle, dismiss, compromise, or commence any Action threatened against, relating to or involving the Company, any Company Subsidiary or any Nonprofit Organization in connection with any business, asset or property of the Company, any Company Subsidiary or any Nonprofit Organization, or waive, assign or release any material rights or claims; (o) enter into any transaction, agreement, arrangement or understanding between (i) the Company, any Company Subsidiary or any Nonprofit Organization, on the one hand, and (ii) any other Affiliate of the Company, on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K; (p) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Cash Merger set forth in Article VII hereof being satisfied or in a violation of any provision of this Agreement; (i) make any Tax election or change any method of accounting, (ii) enter into any settlement or compromise of any Tax liability, (iii) file any amended Tax Return with respect to any Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any Tax, (Avi) hire employees in the position of Vice President surrender any right to claim a material Tax refund or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized laborthat would jeopardize the Tax exemption of any of the Nonprofit Organizations; (xr) acquire fail to timely satisfy or agree cause to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or be timely satisfied all applicable Tax reporting and filing requirements contained in the aggregate, Code with respect to the Company or the Company Entities (taken as a whole)transactions contemplated by this Agreement; (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xivs) make any material investment either by purchase changes in accounting policies or procedures other than in the Ordinary Course of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, Business and other than as required by LawGAAP or a Governmental Authority; (t) except to the extent necessary to take any actions that the Company, the Company Subsidiaries or the Nonprofit Organizations are otherwise permitted to take pursuant to Section 6.7 (and in such case only in accordance with the terms of Section 6.7), waive any of its rights under, or release any other party from, amend, or fail to enforce its rights under, any standstill provision of any agreement; or (xviiiu) proposeenter into any agreement, agree contract, commitment, understanding or arrangement to takedo any of the foregoing, or make any commitment authorize, recommend, propose or announce an intention to take any of the actions prohibited by this Section 5.1(bdescribed in Sections 6.1(a) through 6.1(u). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of ParentThe Company agrees that, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from and after the date of this Agreement hereof and continuing until prior to the Effective Time or the date, if any, on which this Agreement is earlier termination of terminated pursuant to Section 7.1 (the "Termination Date"), and except as may be agreed in writing by DCNA, which agreement shall not be unreasonably withheld or delayed, as may be expressly permitted pursuant to this Agreement, the Company Parties Company: (i) shall, and shall cause the Company each of its Subsidiaries to, (a) conduct its operations in all material respects according to their ordinary course of business in substantially the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, same manner as heretofore conducted; (ii) retain shall use its reasonable best efforts, and cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact its business organization and goodwill, keep available the services of their its current officers and employees, other key employees and preserve its current relationships with those Persons having significant business dealings with the Company and its Subsidiaries; (iii) maintain their rights shall notify DCNA of any emergency or other substantial change in the normal course of its or its Subsidiaries' respective businesses or in the operation of its or its Subsidiaries' respective properties and Permits, and of any complaints of or hearings (cor written communications indicating that the same are threatened) take no action that would reasonably be expected to adversely affect or delay of which the ability of the parties hereto to (i) obtain any necessary approvals of Company has knowledge before any Governmental Entity required for if such emergency, change, complaint, investigation or hearing would have a Material Adverse Effect on the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby.Company; (biv) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of its Subsidiaries that is not incorporated or organized in the Company Subsidiaries United States or not wholly owned to, directly or indirectly: (i) cause or permit any amendmentrepatriate funds, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside authorize or pay any dividends on or distributions (whether in the form make any distribution with respect to its outstanding shares of cash, equity or property) in respect of any of their equity interests capital stock (other than dividends or distributions by any wholly owned Subsidiary Subsidiaries of the Company); (v) shall not, and shall not permit any of its Subsidiaries to establish, enter into or amend any severance plan, agreement or arrangement or any Company to Plan or materially increase the Company compensation payable or to another wholly owned Subsidiary of become payable or the Company benefits provided to its officers or employees, except as may be required by applicable law or a contract in existence on the date hereof, and other than the payment of the Series A Quarterly Distribution (as defined except for increases for nonofficer employees in the Company Partnership Agreement) in cash in lieu normal course of “pay-in-kind” distributions on the Preferred Units business consistent with past practice and except as set forth in Section 5.1(b)(ii5.1(a)(v) of the Company Disclosure LetterSchedule; (vi) shall not, and shall not permit any of its Subsidiaries to, authorize or announce an intention to authorize, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of any assets or securities, or any disposition of any assets or securities, except in an amount that is not material to the Company and its Subsidiaries taken as a whole and except for the disposition of the Company's 50% ownership interest in DeAn▇▇▇▇ ▇▇▇ine Exhaust, Inc.; (vii) shall not, and shall not permit any of its Subsidiaries to, propose or adopt any amendments to its certificate of incorporation or by-laws (or other similar organizational documents); (viii) shall not, and shall not permit any of its Subsidiaries to, issue or authorize the issuance of, or agree to issue or sell any shares of capital stock of any class (whether through the issuance or granting of options, warrants, commitments, convertible securities, subscriptions, rights to purchase or otherwise) except for the disposition of the Company's 50% ownership interest in DeAn▇▇▇▇ ▇▇▇ine Exhaust, Inc., or take any action to cause to be exercisable any unexercisable option under any existing option plan, except for the issuance of shares of Company Common Stock pursuant to options and grants outstanding as of the date of this Agreement which were issued or made, as the case may be, pursuant to the Company's 1993 Stock Incentive Plan and 1998 Stock Incentive Plan and each of which is set forth in Section 3.2(a) of the Company Disclosure Schedule; (ix) shall not, and shall not permit any of its Subsidiaries to, reclassify, combine, split, combine purchase or reclassify redeem any shares of their equity interests, its capital stock or repurchase, purchase or redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or shares (other securitiesthan as contemplated by the Company Plans); (iiix) grant any optionsshall not, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of and shall not permit any of its material properties Subsidiaries to, (A) incur, assume or assets, or cancel, release or assign prepay any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness other liabilities for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of issue any Third Party (debt securities other than any Company incurrences and repayments of indebtedness under the Company's or its Subsidiaries), except ' credit facilities in existence on the date of this Agreement in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person (other than wholly owned Subsidiaries), except for guarantees by Subsidiaries of the Company and of indebtedness permitted under the Company Subsidiaries preceding clause (on a consolidated basis) as of the Closing Date exceeding the Target Debt CapA); (1xi) amend shall not, and shall not permit any of its Subsidiaries to (or otherwise modifyconsent to any proposal by any Person in which the Company has an investment to), except make or forgive any loans, advances or capital contributions to, or investments in, any other Person other than the Company or any wholly-owned Subsidiary of the Company (including any intercompany loans, advances or capital contributions to, or investments in, any affiliate) other than advances to employees in the ordinary course of businessbusiness in accordance with the Company's or its Subsidiaries' established policies; (xii) shall not, or violateand shall not permit any of its Subsidiaries to, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) enter into any restriction on the ability material lease or license or otherwise subject to any material Lien any of a Company Entity to conduct its business as it is presently being conductedproperties or assets (including securitizations), or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually practice; (B) modify or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase amend in any manner the compensation material respect, or benefits of terminate, any of the current or former directors or officers of the Company Entities its material contracts (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses except in the ordinary course of business); (C) waive, (iii) become a party to, establish, amend, commence participation in, make release or assign any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which rights that are material, individually or in the aggregate, material to the Company or the Company Entities (and its Subsidiaries taken as a whole); ; or (xiD) implement or adopt permit any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted;insurance policy naming it as (xiii) transfer ownershipshall not, and shall not permit any of its Subsidiaries to change any of the financial accounting methods used by it unless required by generally accepted accounting principles of the applicable country or change in applicable law; (xiv) shall not, and shall not permit any of its Subsidiaries to, file with, or grant submit to, any license Governmental Entity (including the SEC) any registration statement, prospectus or other rightssimilar document, or any amendment or supplement thereto, relating to any Person of or in respect the issuance of any material Intellectual Propertysecurities of the Company or any Subsidiary of the Company, other than grants a registration statement of non-exclusive licenses pursuant to license agreements entered into the Company on Form S-8 (including any final prospectus thereon) or any amendment or supplement thereto, filed with the SEC in connection with the Company's 1993 Stock Incentive Plan and 1998 Stock Incentive Plan in each case, in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shallnot, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly agree, in writing or indirectly: (i) cause or permit any amendmentotherwise, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the foregoing actions prohibited or take any action which would (y) make any representation or warranty in Article III hereof untrue or incorrect in any material respect, or (z) result in any of the conditions to the Offer set forth in Annex A hereto or any of the conditions to the Merger set forth in Article VI hereof not being satisfied; (b) DCNA agrees that, from and after the date hereof and prior to the earlier of the Effective Time and the Termination Date, and except as may be agreed in writing by the Company or as may be expressly permitted pursuant to this Section 5.1(d)Agreement, DCNA shall not, and shall not permit any of its Subsidiaries to (i) agree, in writing or otherwise, to take any action which would result in any of the conditions to the Offer set forth in Annex A hereto or any of the conditions to the Merger set forth in Article VI hereof not being satisfied or (ii) delay the consummation of the Offer.

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, the Company Parties shall, and shall cause the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the earlier of the Effective Time or the earlier termination of this Agreement, and except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted otherwise contemplated by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall notshall, and shall not permit any cause each of the Company its Subsidiaries to, directly or indirectly: (i) cause or permit any amendmentoperate and conduct its business in the usual, modificationregular and ordinary course, alteration or rescission of any Company Entity Charter Documentconsistent with past practice and prudent banking practices; (ii) makepreserve intact the Company’s and each of its Subsidiaries’ corporate existence, declarebusiness organization, set aside or pay any dividends or distributions (whether in the form of cashassets, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company licenses, permits, authorizations, and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securitiesbusiness opportunities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on comply with all material contractual obligations applicable to business operations of the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entityand/or its Subsidiaries; (iv) issuemaintain all of its properties and assets in good repair, deliver order and condition, reasonable wear and tear excepted, and maintain the insurance coverages described in Section 5.18 or sell or authorize or propose obtain comparable insurance coverages from reputable insurers, which, in respect to amounts, types and risks insured, are adequate for the issuance, delivery or sale of, or purchase or propose business conducted by the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securitiesCompany and its Subsidiaries and consistent with the existing insurance coverages; (v) sellin good faith and in a reasonable manner (a) cooperate with Sterling in satisfying the conditions in this Agreement, transfer(b) assist Sterling in obtaining as promptly as possible all consents, pledgeapprovals, leaseauthorizations and rulings, licensewhether regulatory, mortgagecorporate or otherwise, encumber as are necessary to carry out and consummate the transactions contemplated by this Agreement, (c) upon the written request of Sterling, furnish information concerning the Company and its Subsidiaries not previously provided to Sterling required for inclusion in any filings or otherwise dispose of any of its material properties or assetsapplications that may be necessary in that regard, or cancel, release or assign any material amount of indebtedness and (d) perform all acts and execute and deliver all documents necessary to any Person or any material claims against any Personcause the transactions contemplated by this Agreement to be consummated at the earliest date that is reasonably possible; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of timely file all Reports required to be so filed by the Company or any of its Subsidiaries with any Regulatory Authority and to the Company Subsidiaries (on a consolidated basis) as extent permitted by applicable law, promptly thereafter deliver to Sterling copies of the Closing Date exceeding the Target Debt Capall such Reports required to be so filed; (1vii) amend or otherwise modifycomply in all material respects with all applicable laws and regulations, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or businessdomestic and foreign; (viii) make promptly notify Sterling upon obtaining knowledge of any capital expendituresdefault, (other than drydocking capital expenditures) capital additions event of default or capital improvements except in condition with which the ordinary course passage of business consistent with past practice in amounts that do not exceed $3.0 million individually time or $6.0 million in giving of notice would constitute a default or an event of default under the aggregateCompany Loan Documents and promptly notify and provide copies to Sterling of any material written communications concerning the Company Loan Documents; (ix) except as required by existing promptly give written Contracts or Company Benefit Plans existing as notice to Sterling of the date hereof, (ia) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting business, operations or financial accounting methodsprospects, principles (b) any complaints, investigations or practices, except as hearings (or communications indicating that the same may be required by applicable Lawcontemplated) of any Regulatory Authority, GAAP(c) the institution or the threat of any material litigation against the Company, Regulation S-X or other Regulation promulgated by (d) any event or condition that would cause any of the SEC; (xii) enter into any new line representations or warranties of business the Company contained in this Agreement to be untrue or change misleading in any material respect or which would otherwise cause a Company Material Adverse Effect; and (x) use its best efforts to maintain current customer relationships and preserve intact its business as currently conducted;organization, employees, advantageous business relationships and retain the services of its officers and employees; and (xiiixi) transfer ownershippromptly notify Sterling of the making, or grant any license or other rightsrenegotiating, to any Person of or in respect of any material Intellectual Propertyrenewal, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securitiesincrease, contributions to capital, property transfersextension, or purchase of any property or assets of any other Person; loan, lease (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminatecredit equivalent), amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methodsadvance, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax electioncredit enhancement, or settle or compromise other extension of credit in an amount exceeding $750,000 to any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b)individual borrower. (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parentset forth in Schedule 6.04 hereto, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from on and after the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, the Company Parties shall, and shall cause the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under until this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreementshall be terminated as herein provided, except (1) as set forth in Section 5.1(b) of the Company Disclosure LetterCochrane shall not, (2) as expressly permitted by this Agreement, or (3) with without the prior written consent of ParentNewco: (a) make any changes in its capital stock accounts or declare, which consent shall not be unreasonably withheldauthorize, delayed approve or conditionedissue any stock split or stock dividend or any recapitalization or reclassification of its capital stock; (b) authorize a class of stock or issue, or authorize the Company Parties shall notissuance of, and shall not permit securities or options other than or in addition to the Outstanding Cochrane Shares or the Stock Options; (c) declare, authorize, approve or issue any distribution or dividend to the shareholders of Cochrane; (d) redeem any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter DocumentOutstanding Cochrane Shares; (iie) makemerge, declareconsolidate, set aside affiliate, effect a share exchange or pay any dividends otherwise combine with, sell a material portion of its assets to or distributions (whether in the form of cash, equity or property) in respect of sell any of their equity interests (other than dividends its securities to any third party; or distributions by enter into a new line of business or change in any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify material respect any of their equity interests, its operations or repurchase, redeem or otherwise acquire, directly or indirectly, any existing lines of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securitiesbusiness; (iiif) grant acquire or dispose of any optionsproperty or assets in excess of $10,000 individually or $25,000 in the aggregate, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on except for purchases in the value ordinary course of equity interests or other equity-based award with respect to business of raw materials inventory and sales in the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entityordinary course of business of finished goods inventory; (ivg) issue, deliver refinance or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of restructure any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assumeother debts or obligations; or amend, guaranteemodify or terminate, endorse or change the terms or conditions of, any agreement with any bank, financial institution or other lender or any promissory note, bond, indenture or other evidence of indebtedness; (h) increase or incur any new or additional indebtedness to any bank, financial institution or other lender, except for any advances under its existing revolving credit facilities provided by Mellon Bank, N.A., or pay any fee to Mellon Bank, N.A. or any other bank, financial institution or lender; (i) fail to timely pay (subject to cash flow limitations) and accrue its accounts payable, indebtedness to third parties, Taxes (including, without limitation, withholdings from employees), interest and other obligations in the ordinary course of business in accordance with the respective terms and conditions of such accounts payable, indebtedness and other obligations or as otherwise as an accommodation become responsible for are required to be paid; (j) incur any accounts payable, indebtedness or other obligation, or create, record or collect any accounts receivable, except in the obligations ordinary course of business and on terms and conditions that are generally acceptable to parties in similar circumstances; (k) amend, modify or terminate, or grant any Third Party (other than waiver or concession under, any Company Subsidiaries)contract, agreement, lease, understanding or commitment, except in the ordinary course of business consistent with past practice if such indebtedness would practices of Cochrane and not result material in total indebtedness of amount, whether individually or in the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Capaggregate; (1l) amend amend, modify or otherwise modify, except in the ordinary course of businessterminate, or violate, in each case in forgive or grant any material respect, the terms ofwaiver or concession under, any Material Contractdebt, obligation or (2) createclaim owed to Cochrane or any accounts receivable of Cochrane, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice practices of Cochrane and not material in amounts that do not exceed $3.0 million amount, whether individually or $6.0 million in the aggregate; (ixm) guaranty any indebtedness or other obligation of any third party, other than the existing guaranty of Cochrane as set forth in Schedule 4.10 hereto; (n) place or allow to exist on any of its assets or properties any security interest, pledge, mortgage, deed of trust, encumbrance, charge, claim or other lien, except as required by permitted under Section 4.12 hereof; (o) amend, modify or restate Cochrane's Articles of Incorporation or By-Laws; (p) promote to a new position or increase the rate of compensation of any director, officer or employee of Cochrane; (q) hire or employ any new or additional employees, except for employees hired to replace presently existing written Contracts employees of Cochrane whose employment has been terminated subsequent to the date hereof; (r) create, institute, amend, modify or Company Benefit Plans terminate any employment policy or practice affecting any present or former directors, officers or employees of Cochrane; (s) create, institute, amend, modify or terminate any stock purchase, stock bonus, stock option or stock appreciation plan or agreement; any savings, profit sharing, retirement or employee pension benefit plan; any insurance plan, policy or agreement or other employee welfare benefit plan; or any employment, deferred compensation, consulting, bonus, incentive, severance or collective bargaining agreement; or change the level of benefits or payments under any of the foregoing which are in effect or existing as of the date hereof, of this Agreement or under any Cochrane Plan; (it) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts fail to Covered Employees not required by any current plan or agreement (maintain its accounting and other than base salary books and records in the ordinary course of business and in the usual manner on a basis consistent with that heretofore maintained; (u) purchase, expand, renovate or in connection with reimbursement materially change any of expenses its plants, warehouses or other facilities; (v) enter into any contract, agreement, lease, commitment, understanding or transaction, or incur any liability or obligation, other than in the ordinary course of business); (w) violate any law, (iii) become a party tostatute, establishrule, amendregulation, commence participation inorder, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit directive or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) governmental requirement in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor;material respect; or (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business contract, agreement, commitment or change in any material understanding with respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by foregoing specified in this Section 5.1(b)6.04. (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except Section 7.1 Conduct of Business by the Company. Following the date hereof and prior to the Closing, except as expressly otherwise contemplated or permitted by this Agreement or with unless Buyer shall otherwise consent in writing: (a) subject to the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed limitations contained in or conditioned, during the period from the date of transactions contemplated by this Agreement and continuing until (including, but not limited to, the Effective Time or the earlier termination of this AgreementTaurus Disposition), the Company Parties shall, and shall cause the Company its Subsidiaries to, (a) conduct carry on their business respective operations in the usual and ordinary course consistent with past practice practice, and shall use its reasonable efforts, and shall cause each of its Subsidiaries to use its reasonable efforts, to preserve substantially intact its present business organization, keep available the services of its present officers and employees, maintain and keep its assets in compliance good repair and condition in accordance with all applicable Lawspast practice, ordinary wear and tear and damage due to casualty excepted, and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and on-going businesses shall be materially unimpaired at the Closing; (b) use reasonable best efforts to the Company shall not, nor shall it propose to, except as required by this Agreement, (i) maintain and preserve intact their business organizations and business relationshipssell or pledge or agree to sell or pledge any capital stock owned by it in any of its Subsidiaries, (ii) retain the services amend its Certificate of their officers and employeesIncorporation or Bylaws, and (iii) maintain their rights and Permitssplit, and (c) take no action that would reasonably be expected to adversely affect combine or delay reclassify its outstanding capital stock or issue or authorize or propose the ability issuance of any other securities in respect of, in lieu of or in substitution for shares of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreementcapital stock, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends dividend or distributions (whether other distribution payable in the form of cash, equity stock or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split(iv) directly or indirectly redeem, combine or reclassify any of their equity interests, or repurchase, redeem purchase or otherwise acquireacquire or agree to redeem, directly purchase or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to otherwise acquire any such equity interests or other securitiesshares of its capital stock; (iiic) grant the Company shall not, nor shall it permit any optionsof its Subsidiaries to, equity interest appreciation rights(i) except as required or contemplated by this Agreement, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize agree to issue, deliver or propose the issuance, delivery or sale sell any additional shares of, or purchase stock appreciation rights or propose the purchase rights of any kind to acquire any shares of, its capital stock of any equity interestsclass, any Company Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securitiesDebt, or subscriptionsany option, rights, rights or warrants or options to acquire, or securities convertible into, shares of capital stock, other than issuances of Company Common Stock pursuant to the exercise of Outstanding Options and except for a Taurus Disposition made in accordance with Section 4.1 hereof, (ii) amend in any respect existing agreements evidencing the Outstanding Options (including, without limitation, the exercise or commitments strike prices thereof) except to permit the acceleration of the vesting or exercisability of the Outstanding Options, (iii) acquire or lease or agree to acquire or lease any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties capital asset or assets, or cancelmake or commit to make any other capital expenditures (including in such calculation the proceeds of any sale/leaseback transactions) in excess of $150,000, release (iv) dispose or assign any material amount agree to dispose of indebtedness to any Person capital assets or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other assets other than any Company Subsidiariesin the ordinary course, with a value in the aggregate in excess of $100,000, (v) (A) create, incur, assume or permit additional indebtedness (including obligations in respect of capital leases), except other than periodic drawdowns under the Company's credit facilities existing as of the date hereof, provided that (1) such drawdowns are in the ordinary course of business consistent with past practice if practice, (2) the amount available under such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) facilities as of the Closing Date exceeding date hereof is not increased and (3) the Target Debt Cap; (1) amend or otherwise modifyaggregate principal amount of indebtedness outstanding thereunder does not exceed $70,000,000, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) assume, guarantee, endorse or otherwise become liable or responsible for the obligations of any restriction on other person (other than a Subsidiary of the ability Company, or as to a Subsidiary of the Company, another Subsidiary of the Company) in an amount in excess of $25,000 (excluding suspense account obligations assumed in connection with acquisitions by the Company whereby the Company also receives the funds held in suspense or an adjustment to the purchase price is made in an equal amount), (C) encumber or grant a Company Entity to engage security interest in any type Material Company Asset other than for the Company's credit facilities existing as of activity or business; the date hereof, (viiiD) make any capital expendituresloans or advances to any other person (excluding intercompany transactions), (enter into any agreement or instrument relating to the borrowing of money or the extension of credit or enter into any other transaction other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million practices, either individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as , in excess of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above$25,000, or (BE) terminate the employment pay or declare any dividend or other distribution with respect to any shares of its capital stock or any employee in the position security exercisable for or convertible into any shares of Vice President or above (other than due to terminations for cause)its capital stock, (vi) take any action which could reasonably be expected acquire or agree to give rise to a claim of resignation for “good reason” (acquire oil or any term of similar import) in any employment agreementgas properties or other material assets, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing the assets of or a substantial portion of the assets ofequity interest in, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are materialcorporation, individually or in the aggregatepartnership, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X association or other Regulation promulgated by the SEC; business organization or division thereof, for an aggregate purchase price in excess of $150,000, (xiivii) enter into or renew any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownershipagreements, or grant any license contracts or other rights, commitments (A) exceeding $100,000 in cost of value that are not expected to any Person of or in respect of any material Intellectual Property, be fully performed within 30 days after the Closing (other than grants of non-exclusive licenses pursuant to license (1) oil and gas marketing agreements (excluding hedging arrangements) entered into in the ordinary course of business consistent with past practice; practices or (xiv2) make any material investment either by purchase of stock commitments for expenditures reflected in the LKA Reserve Report as expenditures planned for 1997) or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xvB) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course of business consistent with past practice and in compliance practice, or (viii) adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement with all applicable Laws, (b) use reasonable best efforts respect to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability any of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby.foregoing; (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent Company shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: except as required to comply with applicable law and other than acceleration of vesting permitted by this Agreement, (i) cause adopt, enter into, terminate or permit amend any amendmentbonus, modificationprofit sharing, alteration compensation, severance, termination, stock option, pension, retirement, deferred compensation, employment or rescission other Plan, agreement, trust, fund or other arrangement for the benefit or welfare of any Parent Party Charter Documents current or former director, officer or employee, (ii) increase in any manner the compensation or fringe benefits of any director, executive officer or employee; provided, however, that the Company shall be permitted to award normal salary increases to employees (other than executive officers) of the Company in the ordinary course of business that are consistent with past practice (including, without limitation, in connection with any promotion of such employee) and that, in the aggregate, do not result in a manner that adversely affects material increase in compensation expense to the terms Company and its Subsidiaries relative to the level in effect prior to such increase), unless consented to by Buyer, (iii) pay any benefit not provided under any existing plan or arrangement, (iv) grant any awards under any bonus, incentive, performance or other compensation plan or arrangement or Plan (including, without limitation, the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Plans or agreements or awards made thereunder), (v) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Plan, other than in the ordinary course of business consistent with past practice, or (vi) adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement to do any of the Parent Common Stockforegoing; (iie) makethe Company shall not, declarenor shall it permit its Subsidiaries to, set aside make any change in its accounting policies or pay any dividends or distributions (whether in the form of cashprocedures, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stockexcept as required under GAAP; (iiif) implement the Company shall use its reasonable efforts to refrain from taking, and shall use its reasonable efforts to cause its Subsidiaries to refrain from taking, any action that would, or adopt reasonably might be expected to, result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material change respect as of the Closing, or in its Tax accounting any of the conditions to the transactions contemplated by this Agreement set forth in -33- 39 Article IX not being satisfied, or financial accounting methods, principles or practices, except as may be (unless such action is required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated law) that would adversely affect the ability of the Company to obtain any of the regulatory approvals required to consummate the transactions contemplated by the SECthis Agreement; (ivg) adopt the Company shall maintain in full force and effect all of its policies of insurance (excluding any insurance policies under which Taurus is the only named insured) in existence as of the date hereof or insurance comparable to the coverage afforded by such policies; and (h) the Company shall not enter into any natural gas or other future or options trading or be a plan party to any price swaps, hedg▇▇, ▇▇tures or similar instruments without first obtaining the consent of complete or partial liquidation or dissolution; (v) make any material change in its Tax methodsBuyer, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d)which consent shall not be unreasonably withheld.

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during During the period from the date of this Agreement and continuing until to the Effective Time Time, except as expressly required or permitted by this Agreement (including as set forth on Section 5.1(a) of the earlier termination of this AgreementSouth Disclosure Schedule), the Company Parties or as required by applicable Law or as consented to in writing by North (such consent not to be unreasonably withheld), South shall, and shall cause the Company each of its Subsidiaries to, (ai) conduct their its business in the ordinary course consistent with past practice and in compliance with all applicable Lawsmaterial respects, (bii) use commercially reasonable best efforts to (i) maintain and preserve intact their its business organizations organization and advantageous business relationships, (ii) and retain the services of their its key officers and key employees, and (iii) maintain their rights its properties in customary repair, order and Permitscondition, ordinary wear and tear excepted, (civ) comply with applicable Laws in all material respects, (v) take no action that would reasonably be expected to adversely affect or delay the ability obtaining of the parties hereto to (i) obtain any necessary approvals of any Regulatory Agency or other Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby, and (vi) perform its covenants and agreements under this Agreement. (b) During the period from the date of this Agreement and continuing until to the Effective Time or the earlier termination of this AgreementTime, except as included in any North SEC Disclosure or as expressly required or permitted by this Agreement (1) including as set forth in on Section 5.1(b) of the Company North Disclosure Letter, (2) as expressly permitted by this AgreementSchedule), or as required by applicable Law or as consented to in writing by South (3) with the prior written such consent of Parent, which consent shall not to be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent North shall, and shall cause each of its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (bi) use commercially reasonable best efforts to (i) maintain and preserve intact their its business organizations organization and advantageous business relationships, and retain the services of its key officers and key employees, (ii) retain the services of their officers and employeescomply with applicable Laws in all material respects, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability obtaining of the parties hereto to (i) obtain any necessary approvals of any Regulatory Agency or other Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement , and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in perform its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by covenants and agreements under this Section 5.1(d)Agreement.

Conduct of Business Prior to the Effective Time. (a) Except Section 7.1 Conduct of Business by Gladstone. Following the date hereof and prior to the Effective Time, except as expressly otherwise contemplated or permitted by this Agreement or with unless the prior written Company shall otherwise consent of Parent, which consent shall not be unreasonably withheld, delayed in writing: (a) subject to the limitations contained in or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of transactions contemplated by this Agreement, the Company Parties shall, and Gladstone shall cause the Company Subsidiaries to, (a) conduct their business carry on its operations in the usual and ordinary course consistent with past practice practice, and in compliance with all applicable Laws, (b) shall use its reasonable best efforts to preserve substantially intact its present business organization, keep available the services of its present officers and employees, maintain and keep its material assets in as good repair and condition as of the date hereof, ordinary wear and tear and damage due to casualty excepted, and preserve its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and on-going businesses shall be materially unimpaired at the Effective Time; (b) Gladstone shall not, nor shall it propose to, except as required by this Agreement, (i) maintain and preserve intact their business organizations and business relationshipsamend its Certificate of Incorporation or By-laws, (ii) retain split, combine or reclassify its outstanding capital stock or issue or authorize or propose the services issuance of their officers and employeesany other securities in respect of, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect in lieu of or delay the ability in substitution for shares of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreementcapital stock, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends dividend or distributions (whether other distribution payable in the form of cash, equity stock or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split(iii) directly or indirectly redeem, combine or reclassify any of their equity interests, or repurchase, redeem purchase or otherwise acquireacquire or agree to redeem, directly purchase or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to otherwise acquire any such equity interests or other securitiesshares of its capital stock; (iiic) grant any optionsGladstone shall not, equity interest appreciation rightswithout the consent of the Company: (i) except as required or contemplated by this Agreement, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize agree to issue, deliver or propose the issuance, delivery or sale sell any additional shares of, or purchase stock appreciation rights or propose the purchase rights of any kind to acquire any shares of, its capital stock of any equity interestsclass, any Gladstone Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securitiesDebt, or subscriptionsany option, rights, rights or warrants or options to acquire, or other agreements securities convertible into, shares of capital stock, (ii) acquire or commitments of lease or agree to acquire or lease any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties capital asset or assets, or cancelmake any other capital expenditures, release (iii) dispose or assign any material amount agree to dispose of indebtedness to any Person capital assets or any other assets other than in the ordinary course, (iv) (A) create, incur, assume or permit additional material claims against any Person; indebtedness (viincluding obligations in respect of capital leases), (B) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become liable or responsible for the obligations of any Third Party other person in an amount in excess of $10,000, (C) encumber or grant a security interest in any Material Gladstone Asset, or (D) make any loans or advances to any other person, enter into any agreement or instrument relating to the borrowing of money or the extension of credit or enter into any other material transaction, other than any Company Subsidiaries), except in each case in the ordinary course of business consistent with past practice if such indebtedness would practice,(v) enter into or renew any material agreements, contracts or other commitments that are not result in total indebtedness of expected to be fully performed within thirty days after the Company Effective Time excluding oil and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend gas leases, farmout agreements, gas sales or otherwise modifypurchase contracts, except joint operating agreements, unit operating agreements and unit agreements entered into in the ordinary course of business, or violate(vi) adopt, in each case in enter into, amend or terminate any material respectcontract, agreement, commitment or arrangement with respect to any of the terms offoregoing; (d) Gladstone shall not, any Material Contractexcept as required to comply with applicable law: (i) adopt, or (2) createenter into, renew terminate or amend any Contract orbonus, except as may be required by applicable Lawprofit sharing, compensation, severance, termination, stock option, pension, retirement, deferred compensation, employment or other binding obligation Plan, agreement, trust, fund or other arrangement for the benefit or welfare of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conductedcurrent or former director, officer or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expendituresemployee, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (iii) increase in any manner the compensation or fringe benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement director (other than base salary in the ordinary course adoption of business any special compensation for the members of the Special Committee), executive officer or in connection with reimbursement of expenses in the ordinary course of business)employee, (iii) become a party to, establish, amend, commence participation in, make pay any adjustment to, terminate benefit not provided under any existing plan or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees)arrangement, (iv) accelerate the vesting of grant any equity-based compensation awards under any other bonus, incentive, performance or other long-term incentive compensation under plan or arrangement or plan (including, without limitation, the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Company Benefit PlansPlans or agreements or awards made thereunder), (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (fund or any term of similar import) in any employment other way secure the payment of compensation or benefits under any employee plan, agreement, contract or (vii) adopt, enter into arrangement or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual PropertyPlan, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice, or (vi) adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement to do any of the foregoing; (xive) Gladstone shall not, make any material investment either by purchase of stock change in its accounting policies or securitiesprocedures, contributions to capital, property transfers, or purchase of any property or assets of any other Personexcept as required under GAAP; (xvf) take Gladstone shall use its reasonable best efforts to refrain from taking any action to exempt that would, or reasonably might be expected to, result in any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents representations and warranties set forth in this Agreement being or terminatebecoming untrue in any material respect as of the Effective Time, amend or waive in any provisions of the conditions to the Merger set forth in Article IX not being satisfied, or (unless such action is required by applicable law) that would adversely affect the ability of Gladstone to obtain any confidentiality or standstill agreements in place with any Third Partiesof the regulatory approvals required to consummate the Merger, as contemplated hereby; (xvig) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or Gladstone shall not settle or compromise any Tax liability, other than as required by Law; orclaim for dissenters' rights in respect of the Merger; (xviiih) propose, agree to take, or make any commitment to take any Gladstone shall maintain in full force and effect all of its policies of insurance in existence as of the actions prohibited date hereof or insurance comparable to the coverage afforded by this Section 5.1(b).such policies; and (ci) Except as set forth in Section 5.1(c) of Gladstone shall not enter into any natural gas or other future or options trading or be a party to any price swaps, hedg▇▇, ▇▇tures or similar instruments without first obtaining the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. Except (ai) Except as expressly contemplated or permitted by this Agreement Agreement, (ii) as described in Section 5.1 of the Synchrologic Disclosure Schedules, or with (iii) to the prior written extent that Pumatech shall otherwise consent of Parent, which in writing (such consent shall not to be unreasonably withheld, delayed or conditionedwithheld), during the period from the date hereof to the earlier of the Effective Time and the termination of this Agreement and continuing until the Effective Time or the earlier termination of this Agreementin accordance with its terms, the Company Parties Synchrologic shall, and shall cause the Company each of its Subsidiaries to, (a) conduct their business its operations in the ordinary course of business consistent with past practice practices and, to the extent consistent therewith, and with no less diligence and effort than would be applied in compliance the absence of this Agreement, seek to preserve intact its current business organizations, keep available the service of its current officers and employees and preserve its relationships with all applicable Lawscustomers, suppliers, distributors, lessors, creditors, employees, contractors and others having business dealings with it with the intention that its goodwill and ongoing businesses shall be unimpaired at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Agreement and except as described in Section 5.1 of the Synchrologic Disclosure Schedules, between the date hereof and the Effective Time, neither Synchrologic nor any of its Subsidiaries shall, without the prior written consent (bsuch consent not to be unreasonably delayed or withheld) use reasonable best efforts to of Pumatech: (i) maintain and preserve intact their business organizations and business relationships, authorize or propose any amendments to its Articles of Incorporation or bylaws (or other similar governing instrument); (ii) retain the services of their officers and employeesaccelerate, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect amend or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During change the period from of exercisability or the vesting schedule of restricted stock granted under any employee stock plan or agreements or authorize cash payments in exchange for any options granted under any of such plans except as specifically required by the terms of such plans or any related agreements or any such agreements in effect as of the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) specifically disclosed on Schedule 5.1 of the Company Synchrologic Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter DocumentSchedules; (iiiii) make, declare, set aside declare or pay any dividends on or make any other distributions (whether in the form of cash, equity stock or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter)its capital stock, or split, combine or reclassify any of their equity interestsits capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of such party, or repurchase, redeem purchase or otherwise acquire, directly or indirectly, any shares of their equity interests or its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any other securities thereof or any rights, warrants or options to acquire any termination of service by such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entityparty; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt shares of its capital stock or other securities, securities convertible into equity interests, Voting Debt or other securitiesshares of its capital stock, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, issue any such equity interests, Voting Debt, convertible securities shares or other convertible securities, other than (i) the issuance of (A) shares of Synchrologic Common Stock issuable upon exercise of Synchrologic Options or Synchrologic Warrants, which are outstanding on the date of this Agreement or (B) shares of Synchrologic Common Stock issuable upon conversion of shares of Synchrologic Preferred Stock or (ii) the repurchase of shares of Common Stock from terminated employees pursuant to the terms of outstanding stock restriction or similar agreements; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any Person corporation, partnership or other business organization or division, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole)assets; (xivi) implement (A) incur or adopt assume any material change trade payables, long-term or short-term debt or issue any debt securities in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line excess of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property$50,000, other than grants trade payables not in excess of non-exclusive licenses pursuant to license agreements entered into an aggregate of $100,000 arising in the ordinary course of business consistent with past practicepractices and Transaction Expenses; (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently Table of Contents or otherwise) for the obligations of any other person except for obligations of any of its Subsidiaries incurred in the ordinary course of business consistent with past practices; (C) make any loans, advances or capital contributions to or investments in any other person (other than to a Subsidiary or customary loans or advances to employees in each case in the ordinary course of business consistent with past practices); (D) pledge or otherwise subject to any Lien (as defined in Section 11.13 hereof) shares of Synchrologic Common Stock or any of its Subsidiaries; or (E) mortgage or pledge any of its material properties or assets, tangible or intangible, or create or suffer to exist any new material Lien (or any increase or expansion of the scope of any existing Lien) thereupon; (vii) except as may be permitted by clause (ii) above or (viii) below or as may be required by Applicable Law or by the applicable agreement or instrument, (A) enter into, adopt, amend or terminate any employment agreement or any bonus payments, (B) enter into, adopt, amend or terminate any pension, retirement, deferred compensation, health, life, or disability insurance, dependent care, severance, profit sharing, compensation, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any director, officer, employee or consultant in any manner or (C) increase in any manner the compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including the granting of stock options, restricted stock, stock appreciation rights or performance units); (viii) pay or agree to pay any severance or termination pay to any director, officer, employee or consultant, except payments (A) made pursuant to written agreements outstanding on the date hereof copies of which have been provided to Pumatech, (B) that are otherwise set forth in Section 5.1(viii) of the Synchrologic Disclosure Schedules with respect to the termination of employees or consultants, or (C) as required by Applicable Law; (ix) exercise its discretion with respect to or otherwise voluntarily accelerate the vesting of any Synchrologic Stock Option as a result of the Merger, any other change of control of the Synchrologic (as defined in the Synchrologic Plans) or otherwise; (x) (A) except as permitted by clause (xiii)(E) below, purchase, acquire, lease or license-in any assets other than in the ordinary course of business consistent with past practices; (B) sell, transfer or otherwise dispose of any assets other than in the ordinary course of business consistent with past practices; (C) enter into any exclusive license, distribution, marketing or sales agreement; (D) other than in the ordinary course of business, enter into any commitment to any person to: (1) develop software without charge or for a de minimus charge, or (2) other than in the ordinary course of business consistent with past practices, incorporate any software into any of the Synchrologic products; (E) sell, license, transfer or otherwise dispose of any Intellectual Property; (F) grant “most favored nation” pricing to any entity. Notwithstanding the foregoing, the Synchrologic may: (I) purchase, acquire or license-in any assets that (a) in any single transaction or series of related transactions has a fair market value of less than $50,000 in the aggregate, and (b) does not require the Synchrologic to perform any obligation (other than normal confidentiality provisions) for a period (including any renewals) of more than one year; (II) sell, or non-exclusively license to third-parties, the Synchrologic Products in transactions that: (a) are in the ordinary course of business and consistent with past practices, (b) are non-exclusive licenses of “off-the-shelf” Synchrologic computer software applications to the Synchrologic end-user customers that are generally available to all interested end-users on standard terms and conditions, or (c) in any single transaction or series of related transactions, have a fair market value of less than $50,000 in the aggregate; and (III) license-in Shrinkwrap Software that: (a) in any single transaction or series of related transactions, has a fair market value no greater than $50,000 in the aggregate, and (b) does not require the Synchrologic to perform any obligation (other than normal confidentiality provisions) for a term (including any renewals) of no more than one year. Table of Contents (xi) except as may be required as a result of a change in law or in United States generally accepted accounting principles, change any of the accounting principles, practices or methods used by it; (xii) revalue any of its assets or properties, including writing down the value of assets or writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practices or due to changes in GAAP requiring such revaluation that are adopted after the date hereof; (A) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other person or division or business unit thereof or any equity interest therein; (B) enter into any contract or agreement that would be material to the Synchrologic and its Subsidiaries, taken as a whole other than customer contracts in the ordinary course of business consistent with past practices; (C) amend, modify or waive any right under any Material Contract of the Synchrologic or any of its Subsidiaries; (D) modify its standard warranty terms for its products or services or amend or modify any product or service warranties in effect as of the date hereof in any material manner that is adverse to the Synchrologic or any of its Subsidiaries; or (E) authorize any additional or new capital expenditure or expenditures that individually or in the aggregate are in excess of $50,000 per fiscal quarter, provided that the amount by which capital expenditures in any fiscal quarter shall be less than $50,000 shall be carried over to future months to increase the maximum that may be spent on capital expenditures in such fiscal quarter; (xiv) make or rescind any material investment either by purchase election relating to Taxes or settle or compromise any material Tax liability or enter into any closing or other agreement with any Tax authority with respect to any material tax liability; or file or cause to be filed any material amended Tax Return, file or cause to be filed any claim for refund of stock or securities, contributions to capital, property transfersTaxes previously paid, or purchase agree to an extension of any property a statute of limitations with respect to the assessment or assets determination of any other PersonTaxes; (xv) fail to file any material Tax Returns when due, fail to cause such Tax Returns when filed to be materially true, correct and complete, prepare or fail to file any Tax Return in a manner inconsistent with past practices in preparing or filing similar Tax Returns in prior periods or, on any such Tax Return of the Synchrologic, take any action position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods, in each case, except to exempt the extent required by Applicable Law, or fail to pay any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Partiesmaterial Taxes when due; (xvi) make settle or compromise any pending or threatened suit, action or claim that (A) relates to the transactions contemplated hereby or (B) the settlement or compromise of which would involve more than $25,000 or that would otherwise be material change in to the Synchrologic with respect to non-monetary matters and its Tax methods, principles Subsidiaries or electionsrelates to any Intellectual Property matters; (xvii) file enter into any licensing, distribution, sponsorship, advertising, merchant program or amend any Tax Returnother similar contracts, make or change any Tax electionagreements, or settle obligations which provide for payments by the Synchrologic or compromise any Tax liability, Subsidiary other than as required by Lawin the ordinary course of business in an amount in excess of $50,000 over the noncancelable term of the agreement; (xviii) terminate any material software development project that is currently ongoing, except pursuant to the terms of existing contracts with customers; or (xviiixix) propose, take or agree to take, in writing or make any commitment otherwise to take any of the actions prohibited by this Section 5.1(b). described in Sections 5.1(i) through 5.1(xviii) (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which and it shall use all reasonable efforts not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no any action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by representations or warranties of Synchrologic contained in this Section 5.1(dAgreement untrue or incorrect).

Conduct of Business Prior to the Effective Time. `Except (ai) Except as expressly contemplated or permitted by this Agreement Agreement, (ii) as described on Schedule 6.2 of the Disclosure Schedules or with (iii) to the prior written extent that Parent shall otherwise consent of Parent, which in writing (such consent shall or declination to consent not to be unreasonably withheld, delayed or conditionedwithheld), during the period from the date hereof to the earlier of the Effective Time and the termination of this Agreement and continuing until the Effective Time or the earlier termination of this Agreementin accordance with its terms, the Company Parties shall, and shall cause the Company Subsidiaries to, (a) conduct their business its operations in the ordinary course of business consistent with past practice practices and in compliance with all applicable Laws, (b) will use commercially reasonable best efforts to (i) maintain preserve intact its current business organizations, keep available the service of its current officers and key employees and preserve intact their business organizations its relationships with material customers and business relationshipssuppliers. Except as otherwise expressly provided in this Agreement and except as described on Schedule 6.2 of the Disclosure Schedules, (ii) retain between the services date hereof and the earlier of their officers the Effective Time and employeesthe termination of this Agreement in accordance with its terms, the Company shall not, and the Company shall cause each Subsidiary not to, without the prior written consent (iiisuch consent or declination to consent not to be unreasonably delayed or withheld) maintain their rights and Permits, and of Parent: (ca) take no action that would reasonably be expected authorize any amendments to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby.its organizational documents; (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside declare or pay any dividends on or make any other distributions (whether in the form of cash, equity stock or property) in respect of any of their its equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter)interests, or split, combine or reclassify any of their its equity interests, ; (c) issue or repurchase, redeem or otherwise acquire, directly or indirectly, sell any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interestsinterests other than the issuance of (i) shares of Common Stock, Voting Debtissuable upon exercise of Options, convertible securities which are outstanding on the date of this Agreement or other securities(ii) shares of Common Stock issuable upon conversion of shares of Preferred Stock; (vd) sellacquire an equity interest in or portion of the assets of, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person business or any material claims against any Person; (vi) incur any indebtedness for borrowed money corporation, partnership or assumeother business organization or division, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course purchases of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company inventory and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except supplies in the ordinary course of business; (e) other than the maximum amount of Indebtedness that may be borrowed under the Company’s or its Subsidiaries’ existing credit facility and other Indebtedness existing on the date hereof, incur any debt or violate, in each case in issue any material respect, the terms of, any Material Contract, or debt securities; (2f) create, renew or amend any Contract or, except as may be required by applicable Lawlaw or by any applicable agreement or instrument, (1) enter into or amend any employment agreement with any executive officer of the Company or any of its Subsidiaries, (2) enter into or amend any Employee Plan for the benefit of any director or executive officer in any manner, (3) increase the annual or hourly compensation of, or enter into any new bonus or incentive agreement or arrangement with, any group of employees or any employee with an annual salary that exceeds $50,000, (4) pay or agree to pay any pension, retirement allowance or similar employee benefit to any employee, (5) amend, terminate, accelerate or modify the terms of any employment, severance, consulting, other binding obligation of a Company Entity containing compensation or collective bargaining agreement, (A6) commit itself to or adopt any restriction on the ability of a Company Entity to conduct its business as it is presently being conductedadditional pension, profit-sharing, deferred compensation, group insurance, severance pay, retirement or other employee benefit plan, fund or similar arrangement or policy, or (B) amend or commit itself to amend any restriction of such plans, funds or similar arrangements or policies in existence on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, or (i7) increase in any manner the compensation benefits payable under any Employee Plan, trust, agreement or benefits other arrangement covering any existing or former employee; (g) sell, transfer or otherwise dispose of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (material assets other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (xh) acquire or agree to acquire by merging or consolidating withredeem, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person purchase or otherwise acquire any of its capital stock (or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a wholeother applicable ownership interests); (xii) implement make any loan to, or adopt enter into any material change other transaction with, any of its directors, officers or key employees unless such transaction with an officer or key employee is made in its Tax accounting or financial accounting methods, principles or practices, the ordinary course of business; (j) except as may be required by applicable Law, as a result of a change in law or in GAAP, Regulation S-X change any of the accounting principles, practices or other Regulation promulgated methods used by the SECit; (xiik) enter into authorize any new line of business capital expenditure or change expenditures that would result in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in capital expenditures not contemplated by the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by LawCompany 2010 Budget; or (xviiil) proposeamend, modify or terminate any Material Contract required to be identified on Schedule 4.18(a) or 4.18(b) of the Disclosure Schedules; (m) fail to maintain their assets in good operating condition and repair (subject to normal wear and tear) and as may be required for the normal operation of their business and to comply in all material respects with applicable Laws; (n) create, authorize or suffer to exist any Lien on their assets, other than Permitted Liens; (o) materially change their practice (as in effect during the eleven-month period ending November 30, 2009) with respect to the payment of accounts payable or the collection of accounts receivable, including the terms and timing of payments by customers or to vendors; or (p) take or agree to take, in writing or make any commitment otherwise to take any of the actions prohibited by this Section 5.1(bdescribed on Sections 6.2(a) through 6.2(o). (c) Except as set forth in Section 5.1(c) of . Notwithstanding the Parent Disclosure Letterforegoing, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement Merger Sub and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, acknowledge and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to agree that (i) maintain and preserve intact their business organizations and business relationshipsnothing contained in this Agreement shall give Parent, (ii) retain directly or indirectly, the services right to control or direct the Company’s operations for purposes of their officers and employeesthe HSR Act or any other applicable antitrust or competition Law prior to the expiration or termination of any applicable HSR Act waiting period or any other applicable antitrust or competition Law waiting period, or prior to receipt of any applicable approval under any antitrust or competition Law, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected notwithstanding anything to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided contrary set forth in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as no consent of Parent will be required with respect to any matter set forth in Section 5.1(d) the Agreement to the extent the requirement of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written such consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit would violate any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. MOC agrees that from the date hereof until the Effective Time (a) Except or, insofar as expressly contemplated such matters pertain to Souter or permitted the Souter Subsidiaries, until the So▇▇▇▇ Effective ▇▇▇▇), except as required or ▇▇▇▇▇▇plated by this Agreement or with the prior written as otherwise consented to or approved by OSG, such consent of Parent, which consent shall not to be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, the Company Parties shall, and shall cause the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary The business of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except MOC Companies shall be operated in the ordinary course of business consistent with past practice if such indebtedness would present practices. (ii) The MOC Companies shall not result enter into any contract relating to employment, compensation or benefits or enter into or amend any employee benefit plan. (iii) The MOC Companies shall maintain in total indebtedness effect all insurance policies with respect to their business and properties of the Company type and in amounts consistent with present practice. (iv) The MOC Companies shall maintain and preserve the Assets (and the Company Subsidiaries (on a consolidated basis) as assets of the Closing Date exceeding MOC Subsidiaries) consistent with prior practice and shall not dispose of or subject to any Liens any Assets (or assets of the Target Debt Cap; (1MOC Subsidiaries) amend or otherwise modify, except other than in the ordinary course of business, shall not dispose of or violatesubject to any Liens any MOC Subsidiary Shares, in each case in and shall not permit the issuance of nor any material respect, the terms of, agreement to issue any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation shares of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits stock of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, MOC Subsidiary. (v) (A) hire employees The MOC Companies shall comply in all material respects with provisions of Law and the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), MOC Contracts. (vi) The MOC Companies shall not knowingly take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) would make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take materially untrue any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) representations or warranties of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of MOC pursuant to this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, including the Schedules hereto, the Company Parties shallshall carry on its business in, and shall cause the Company Subsidiaries tonot enter into any material transaction other than in accordance with, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Lawsand, (b) to the extent consistent therewith, use its reasonable best efforts to preserve intact its current business organization, keep available the services of its current employees and preserve its relationships with Persons having dealings with it. In connection therewith, the Company shall not (i) maintain and preserve intact their business organizations and business relationshipstransfer or cause to be transferred any employee or agent of the Company to any Affiliates of the Company or any Stockholder, (ii) retain permit any Affiliate of the services Company or of their officers and employeesany Stockholder to offer employment to any such employee or agent, and or (iii) maintain their rights and Permitsotherwise attempt to persuade any such employee or agent to terminate his or her relationship with the Company other than for reasons that are in the best interests of the Company. Without limiting the generality of the foregoing, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted contemplated by this Agreement, or (3) with the Company shall not, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit : 7.6.1 take any action of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Documentnature described in Section 5.16; (ii) make7.6.2 grant any additional options, declareissue, set aside or pay any dividends or distributions (whether in the form deliver, sell, pledge, dispose of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly encumber any shares of its capital stock or indirectly, any of their equity interests or any other securities thereof or (including any rights, warrants or options to acquire any such equity interests shares of its capital stock or other securities; (iii) grant ); or issue any optionscertificate evidencing any shares of Company Common Stock in replacement for any certificate that has been lost, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests destroyed or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries)stolen, except in upon receipt from the ordinary course issuee thereof of business consistent with past practice if such indebtedness would not result in total indebtedness indemnification of the Company in form and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Capsubstance satisfactory to Parent; (1) 7.6.3 amend its Articles of Incorporation or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or businessBylaws; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) 7.6.4 acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets ofof or equity in, or by any other manner, any business or any Person or otherwise acquire division thereof; 7.6.5 make or agree to acquire incur any assets which are materialnew capital expenditure or expenditures which, individually or individually, is in excess of $20,000 or, in the aggregate, to the Company or the Company Entities (taken as a whole)are in excess of $50,000; (xi) implement 7.6.6 pay, discharge or adopt satisfy any claim by or liability or obligation owing to, any present, former or purported holder of any securities of the Company; 7.6.7 alter through merger, liquidation, reorganization, restructuring or in any other fashion its corporate structure; 7.6.8 except for payments set forth on Schedule 5.23, enter into or adopt, or amend, any bonus, incentive, deferred compensation, insurance, medical, hospital, disability or severance plan, agreement or arrangement or enter into or adopt, or amend, any employee benefit plan or employment, consulting or management agreement, other than any such amendment to an employee benefit plan that is made to maintain the qualified status of such plan or its continued compliance with applicable law; or pay or commit to pay any bonus to any officer or employee of the Company, or make any other material change in the compensation of its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SECemployees; (xii) enter into any new line of business or change 7.6.9 modify in any material respect its business as currently conducted; (xiii) transfer ownershipany of the Company Agreements; or enter into any agreement, understanding, obligation or grant commitment; or incur any indebtedness or obligation, of the type that would have been required to be listed in Schedule 5.17 if in existence on the date hereof; or enter into any contract that provides for any approval or consent by any Person to the transactions contemplated by this Agreement, including but not limited to, any license or other rights, development agreement with respect to any Person of or in furtherance of the licensing or other transfer any of the Company's proprietary rights or intellectual property, or any rights therein, or with respect to the development of any material Intellectual Propertygames by the Company; 7.6.10 enter into any other transaction affecting the business of the Company, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock practice or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay 7.6.11 file any dividends or distributions (whether in the form of cash, equity or property) Tax Return in respect of any of their equity interests (its Federal income Taxes or state income or franchise Taxes; or 7.6.12 with respect to Taxes other than dividends Federal income Taxes or distributions by state income or franchise Taxes, prepare or file any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interestsTax Return inconsistent with prior practice, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire on any such equity interests or other securitiesTax Return, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement take any position, make any election, or adopt any material change method that is inconsistent with positions taken, elections made or methods used in its preparing or filing similar Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change Returns in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d)prior periods.

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditionedThe Company covenants and agrees that, during the period from the date of this Agreement and continuing hereof until the Effective Time Time, except as contemplated by this Agreement or as set forth in the corresponding subsection of Section 6.1 of the Company Disclosure Letter, or unless Parent shall otherwise agree in writing, the business of the Company and the Company Subsidiaries, and the use, operation, maintenance and repair of the Leased Real Property or the earlier termination Owned Real Property, shall be conducted in the Ordinary Course of this Agreement, Business and the Company Parties shall, and shall cause the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use its reasonable best efforts to (i) maintain preserve substantially intact its business organization, material insurance policies and preserve intact their business organizations and business relationshipsgoodwill, (ii) retain to keep available the services of their its present officers and other key employees and to preserve its present relationships with suppliers, lessors, employees, customers, liaisons, licensees, distributors, wholesalers, franchisees and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from other Persons with which it has significant business relations. Between the date of this Agreement and continuing until the Effective Time or the earlier termination of this AgreementTime, except (1) as otherwise expressly contemplated by this Agreement or as set forth in the corresponding subsection of Section 5.1(b) 6.1 of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with neither the Company nor any Company Subsidiary shall without the prior written consent of Parent, Parent (which consent shall not be unreasonably withheldwithheld or delayed, delayed or conditionedprovided, however, that Parent shall be entitled to take into account its plans for the Company Parties shall notafter the Effective Time in determining whether or not to grant such consent): (a) (i) purchase, and shall not permit redeem or otherwise acquire its capital stock, or issue, grant, sell, transfer, authorize or encumber any shares of capital stock, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock, or enter into any agreement, understanding or arrangement with respect to the voting of its capital stock or (ii) accelerate, amend, modify or waive any stock repurchase rights, options, warrants or restricted stock, or grant, amend, reprice or exchange Stock Options under any of the Stock Plans or any other equity or equity-based awards to any current or former director, officer, employee, independent contractor or consultant of the Company or any of the Company Subsidiaries to(collectively, directly or indirectly:“Company Personnel”); (b) (i) cause increase the compensation payable or permit any amendment, modification, alteration to become payable to or rescission fringe benefits of any Company Entity Charter Document; Personnel (except for increases in salary or wages in the Ordinary Course of Business to employees who are not executive officers or directors or the payment of accrued but unpaid bonuses), (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, new bonuses or grant any Person severance or termination or transition pay to Company Personnel, (ii) establish, adopt or enter into, amend or terminate any right to acquire Benefit Plan (including any equity interest in Foreign Plan) or any Company Entity; (iv) issueplan, deliver or sell or authorize or propose the issuanceagreement, delivery or sale ofarrangement, or purchase or propose the purchase ofprogram, any equity interestspolicy, Voting Debt trust, fund or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of arrangement that would be a Benefit Plan (including any character obligating Foreign Plan) if it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except were in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) existence as of the Closing Date exceeding the Target Debt Cap; date of this Agreement (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on or allow for the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits commencement of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay new offering periods under any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business)employee stock purchase plans, (iii) become a party tohire, establishor enter any agreement to hire, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee coon a full-investment fund)time, severance, pension, retirement, profitpart-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above time (other than due to terminations for causetemporary employees hired in the Ordinary Course of Business), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement consulting or other arrangement relating to a labor union or organized laborbasis for annual compensation in excess of $100,000; (xi) alter through merger, liquidation, reorganization, restructuring or in any other fashion the corporate structure or ownership of the Company or any of the Company Subsidiaries, (ii) acquire or agree to acquire (by merging merger, consolidation, acquisition of assets or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or otherwise) any Person or material assets, or any voting or non-voting equity securities or similar ownership interests in any Person, (iii) split, combine, subdivide or reclassify any shares of any class or series of its stock or (iv) declare, set aside, make or pay any dividend or make other distribution payable in cash, stock, property or otherwise acquire to holders of any class or agree to acquire series of its stock; (d) enter into, renew, extend or amend or modify in any assets material respect or terminate, cancel, waive, release or assign any contract or agreement which are materialis or, individually or in if applicable, would be a Material Contract (including, without limitation, the aggregate, to the Company or the Company Entities (taken as a wholeVisteon Agreement); (xie) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Lawdisclosed in the Company’s capital expenditure budget for the current fiscal year, GAAPcommit to any capital expenditure (including, Regulation S-X or other Regulation promulgated by the SECwithout limitation, purchase of new software) in excess of $100,000; (xiif) enter into any new line manage the working capital of business or change in any material respect its business as currently conductedthe Company (including, but not limited to, accounts receivable and accounts payable) outside of the Ordinary Course of Business; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xivg) make any material investment either by purchase loans, any advances (other than travel advances to employees in the Ordinary Course of stock Business) or securities, any capital contributions to capital, property transfersto, or purchase of any property or assets of investments in, any other Person; (xvh) (i) incur or modify Indebtedness, or guarantee any Indebtedness, or cancel any Indebtedness or other obligation owed to the Company or any of its subsidiaries, (ii) redeem, repurchase, prepay, defense or otherwise acquire any Indebtedness of the Company or any Company Subsidiary or (iii) other than in the Ordinary Course of Business, enter into hedging, swap or factoring arrangements or contracts or other similar financing instruments; (i) amend any provisions of its articles of organization or bylaws or other organizational documents; (j) transfer, lease, license, sublicense, assign, sell, sublease, mortgage, pledge, or otherwise dispose of, in whole or in part, or incur or subject any Encumbrance on, any property or assets, (including, without limitation, Intellectual Property and any interest in any Owned Real Property), in each case, (other than in the Ordinary Course of Business or amend in any material respect, extend or terminate any leasehold interest in any Leased Real Property; (k) other than with respect to purchase orders in the Ordinary Course of Business, make any payments in excess of $100,000 or incur any commitment in excess of $100,000; (l) commence, undertake or engage in any new line of business; (m) adopt any material discounting or returns policy or program; (n) permit any insurance policy or arrangement naming or providing for it as a beneficiary or a loss payable payee to be cancelled or terminated or impaired in any way; (o) settle, dismiss, compromise, or commence any Action threatened against, relating to or involving the Company and any Company Subsidiary in connection with any business, asset or property of the Company and any Company Subsidiary or waive, assign or release any material rights or claims; (p) enter into any transaction, agreement, arrangement or understanding between (i) the Company or any Company Subsidiary, on the one hand, any (ii) any other Affiliate of the Company (other than the Company Subsidiary), on the other hand, of the type that would be required to be disclosed under Item 404 of Regulation S-K; (q) take any action that is intended or may reasonably be expected to exempt result in any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents representations and warranties set forth in this Agreement being or terminatebecoming untrue in any material respect, amend or waive in any provisions of the conditions to the Merger set forth in Article VII hereof being satisfied or in a violation of any confidentiality or standstill agreements in place with any Third Partiesprovision of this Agreement; (xvii) make any material Tax election or change in its any method of accounting, (ii) enter into any settlement or compromise of any material Tax methodsliability, principles (iii) file any amended Tax Return with respect to any material Tax, (iv) change any annual Tax accounting period, (v) enter into any closing agreement relating to any material Tax or elections(vi) surrender any right to claim a material Tax refund; (xviis) file fail to timely satisfy or amend cause to be timely satisfied all applicable Tax reporting and filing requirements contained in the Code with respect to the transactions contemplated by this Agreement; (t) make any Tax Return, make changes in accounting policies or change any Tax election, or settle or compromise any Tax liability, procedures other than in the Ordinary Course of Business and other than as required by LawGAAP or a Governmental Authority; (u) except to the extent necessary to take any actions that the Company is otherwise permitted to take pursuant to Section 6.5 (and in such case only in accordance with the terms of Section 6.5), waive any of its rights under, or release any other party from, amend, or fail to enforce its rights under, any standstill provision of any agreement; (v) (i) open any new Company Facilities, or (ii) close, sell, reduce the size of, or expand any existing Company Facilities; or (xviiiw) proposeenter into any agreement, agree contract, commitment, understanding or arrangement to takedo any of the foregoing, or make any commitment authorize, recommend, propose or announce an intention to take any of the actions prohibited by this Section 5.1(bdescribed in Sections 6.1(a) through 6.1(v). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with 6.1 Conduct of Business of the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during Company. During the period from commencing on the date of this Agreement hereof and continuing until the Effective Time or the earlier termination of this AgreementTime, the Company Parties shallagrees that the Company, and shall cause except as otherwise expressly contemplated by this Agreement or agreed to in writing by the Company Subsidiaries to, Parent: (a) conduct their will carry on its business only in the ordinary course and consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby.practice; (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall will not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside declare or pay any dividends dividend on or distributions make any other distribution (whether in the form of cash, equity or propertyhowever characterized) in respect of any shares of their equity interests its capital stock; (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreementc) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquirewill not, directly or indirectly, redeem or repurchase, or agree to redeem or repurchase, any shares of their equity interests its capital stock; (d) will not amend its Certificate of Incorporation or By-Laws; (e) will not issue, or agree to issue, any shares of its capital stock, or any other securities thereof or any rightsoptions, warrants or options other rights to acquire shares of its capital stock, or any such equity interests securities convertible into or other securitiesexchangeable for shares of its capital stock; (iiif) grant will not combine, split or otherwise reclassify any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value shares of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entityits capital stock; (ivg) issuewill not form a Subsidiary; (h) will use its commercially reasonable best efforts to preserve intact its present business organization, deliver keep available the services of its officers and key employees and preserve its relationships with clients and others having business dealings with it to the end that its goodwill and ongoing business shall not be materially impaired at the Effective Time; (i) will not (i) make any capital expenditures individually in excess of $10,000 or sell in the aggregate in excess of $25,000, (ii) enter into any license, distribution, OEM, reseller, joint venture or authorize other similar agreement, (iii) enter into or propose the issuance, delivery or sale terminate any lease of, or purchase or propose the purchase ofsell, any equity interestsreal property, Voting Debt (iv) enter into any leases of personal property involving individually in excess of $10,000 annually or other securitiesin the aggregate in excess of $25,000 annually, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sellincur or guarantee any additional indebtedness for borrowed money, transfer, pledge, lease, license(vi) create or permit to become effective any security interest, mortgage, encumber lien, charge or otherwise dispose of any of other encumbrance on its material properties or assets, or cancel, release or assign (vii) enter into any material amount agreement to do any of indebtedness to any Person or any material claims against any Personthe foregoing; (vij) incur will not adopt or amend any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible Benefit Plan for the obligations benefit of Employees, or increase the salary or other compensation (including, without limitation, bonuses or severance compensation) payable or to become payable to its Employees or accelerate, amend or change the period of exercisability or the vesting schedule of options granted under any Third Party stock option plan or agreements except as specifically required by the terms of such plans or agreements, or enter into any agreement to do any of the foregoing; (other than k) will not accelerate receivables or delay payables; (l) will promptly advise the Parent of the commencement of, or threat of (to the extent that such threat comes to the knowledge of the Company) any claim, action, suit, proceeding or investigation against, relating to or involving the Company Subsidiaries)or any of its directors, officers, employees, agents or consultants in connection with their businesses or the transactions contemplated hereby that could reasonably be expected to have a Company Material Adverse Effect; (m) will use its commercially reasonable efforts to maintain in full force and effect all insurance policies maintained by the Company on the date hereof; (n) will not enter into any agreement to dissolve, merge, consolidate or, except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness course, sell any material assets of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of businessCompany, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any Person corporation, partnership or other business organization or division, or otherwise acquire or agree to acquire any assets which are material, individually or in excess of $10,000 in the aggregate, to the Company or the Company Entities (taken as a whole); (xio) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from commencing on the date of this Agreement hereof and continuing until the Effective Time or Time, the earlier termination Company will not take any action which would cause the Merger to fail to qualify as a reorganization under the provisions of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d368(a) of the Code; and (p) will not change the Company's method of accounting and will not make any Tax elections that would adversely affect Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with its subsidiaries without the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, the Company Parties shall, and shall cause the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the earlier of the Effective Time or the earlier termination of this Agreement, and except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted otherwise contemplated by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall notshall, and shall not permit any cause each of the Company its Subsidiaries to, directly or indirectly: (i) cause or permit any amendmentoperate and conduct its business in the usual, modificationregular and ordinary course, alteration or rescission of any Company Entity Charter Documentconsistent with past practice and prudent banking practices; (ii) makepreserve intact the Company’s and each of its Subsidiaries’ corporate existence, declarebusiness organization, set aside or pay any dividends or distributions (whether in the form of cashassets, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company licenses, permits, authorizations, and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securitiesbusiness opportunities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on comply with all material contractual obligations applicable to business operations of the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entityand/or its Subsidiaries; (iv) issuemaintain all of its properties and assets in good repair, deliver order and condition, reasonable wear and tear excepted, and maintain the insurance coverages described in Section 5.18 or sell or authorize or propose obtain comparable insurance coverages from reputable insurers, which, in respect to amounts, types and risks insured, are adequate for the issuance, delivery or sale of, or purchase or propose business conducted by the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securitiesCompany and its Subsidiaries and consistent with the existing insurance coverages; (v) sellin good faith and in a reasonable manner (a) cooperate with Sterling in satisfying the conditions in this Agreement, transfer(b) assist Sterling in obtaining as promptly as possible all consents, pledgeapprovals, leaseauthorizations and rulings, licensewhether regulatory, mortgagecorporate or otherwise, encumber as are necessary to carry out and consummate the transactions contemplated by this Agreement, (c) upon the written request of Sterling, furnish information concerning the Company and its Subsidiaries not previously provided to Sterling required for inclusion in any filings or otherwise dispose of any of its material properties or assetsapplications that may be necessary in that regard, or cancel, release or assign any material amount of indebtedness and (d) perform all acts and execute and deliver all documents necessary to any Person or any material claims against any Personcause the transactions contemplated by this Agreement to be consummated at the earliest date that is reasonably possible; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of timely file all Reports required to be so filed by the Company or any of its Subsidiaries with any Regulatory Authority and to the Company Subsidiaries (on a consolidated basis) as extent permitted by applicable law, promptly thereafter deliver to Sterling copies of the Closing Date exceeding the Target Debt Capall such Reports required to be so filed; (1vii) amend or otherwise modifycomply in all material respects with all applicable laws and regulations, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or businessdomestic and foreign; (viii) make promptly notify Sterling upon obtaining knowledge of any capital expendituresdefault, (other than drydocking capital expenditures) capital additions event of default or capital improvements except in condition with which the ordinary course passage of business consistent with past practice in amounts that do not exceed $3.0 million individually time or $6.0 million in giving of notice would constitute a default or an event of default under the aggregateCompany Loan Documents and promptly notify and provide copies to Sterling of any material written communications concerning the Company Loan Documents; (ix) except as required by existing promptly give written Contracts or Company Benefit Plans existing as notice to Sterling of the date hereof, (ia) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting business, operations or financial accounting methodsprospects, principles (b) any complaints, investigations or practices, except as hearings (or communications indicating that the same may be required by applicable Lawcontemplated) of any Regulatory Authority, GAAP(c) the institution or the threat of any material litigation against the Company, Regulation S-X or other Regulation promulgated by (d) any event or condition that would cause any of the SEC; (xii) enter into any new line representations or warranties of business the Company contained in this Agreement to be untrue or change misleading in any material respect its business as currently conducted;or which would otherwise cause a Company Material Adverse Effect; and (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (bx) use reasonable its best efforts to (i) maintain current customer relationship and preserve intact their its business organizations organization, employees, advantageous business relationships and business relationships, (ii) retain the services of their its officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated herebyEmployees. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except (i) as otherwise expressly contemplated or permitted by this Agreement Agreement, (ii) as required by applicable Law, or (iii) as set forth in Section 5.1(a) of the Company Disclosure Schedule or with the prior written consent of Parent, Parent (which consent shall not be unreasonably withheld, delayed conditioned or conditioneddelayed), during the period from the date of this Agreement and continuing until to the earlier of the date of termination hereof in accordance with Article VII or the Effective Time or the earlier termination of this AgreementTime, the Company Parties shall, and shall cause the Company each of its Subsidiaries to, (ai) conduct their its business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (bii) use reasonable best efforts to (i) maintain and preserve intact their its business organizations organization, and its rights, authorizations, franchises and other authorizations issued by Governmental Entities, preserve its business relationshipsrelationships with customers, (ii) vendors, distributors and others doing business with it and retain the services of their its officers and key employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time Except (i) as expressly contemplated or the earlier termination of permitted by this Agreement, except (1ii) as required by applicable Law, or (iii) as set forth in Section 5.1(b) of the Company Disclosure LetterSchedule, (2) as expressly permitted by during the period from the date of this Agreement, Agreement to the earlier of the date of termination hereof in accordance with Article VII or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditionedEffective Time, the Company Parties shall not, and shall not permit any of the Company its Subsidiaries to, directly without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or indirectly:delayed): (i) cause amend or permit otherwise change its certificate of incorporation or bylaws or other applicable organizational documents, adjust, split, combine or reclassify any amendmentcapital stock or other equity interest or enter into a plan of consolidation, modificationmerger, alteration share exchange, share acquisition, reorganization or rescission of complete or partial liquidation with any Company Entity Charter Documentperson; (ii) makeissue, declaregrant, set aside sell, dispose of, redeem or pay repurchase any dividends equity securities or distributions (whether equity-based award in the form Company or any of cashits Subsidiaries, or securities convertible into, or exchangeable or exercisable for, any such equity securities or property) in respect awards, or any rights of any of their kind to acquire any such equity interests (securities or such convertible or exchangeable securities, other than dividends (A) the issuance of Ordinary Shares upon the exercise of Company Options or distributions the settlement of Company RSU Awards, (B) by any wholly a wholly-owned Subsidiary of the Company to the Company or another wholly-owned Subsidiary of the Company, or (C) in connection with Tax withholdings and exercise price settlements upon the exercise of Company Options. (iii) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to another wholly any of Ordinary Shares or other shares of capital stock or equity interests (except for any dividend or distribution by a wholly-owned Subsidiary of the Company and other than to the payment Company or another wholly-owned Subsidiary of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure LetterCompany), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, license, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of (whether by merger, consolidation or sale of stock or assets or otherwise), abandon or fail to maintain any of its material properties or assets, rights or cancelbusinesses of the Company or its Subsidiaries (including any capital stock of any Subsidiaries), release or assign any material amount of indebtedness to any Person or any material claims against any Personin each case other than dispositions not exceeding $1,000,000 in the aggregate; (viv) incur acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any indebtedness for borrowed money corporation, partnership or assumeother business organization or division thereof or any assets, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (in each case other than any Company Subsidiaries), except (A) purchases of equipment and other assets in the ordinary course of business or (B) acquisitions not exceeding $1,000,000 in the aggregate; (vi) (A) incur, assume, refinance or guarantee any indebtedness for borrowed money (other than indebtedness among the Company and/or wholly-owned Subsidiaries) or issue any debt securities, or assume or guarantee any indebtedness for borrowed money of any person, except for borrowings in the ordinary course of business in an amount not to exceed $2,500,000 in the aggregate outstanding at one time, or (B) enter into any swap or hedging transaction or other derivative agreement; (vii) make any loans, advances or capital contributions to, or investments in, any other person (other than to any wholly-owned Subsidiary of the Company) in excess of $1,000,000 in the aggregate; (i) enter into any Contract involving or providing for the settlement (or proposed settlement) of, or other arrangements with respect to, any Claims or threatened Claim (or series of related Claims) (A) with a Governmental Entity, (B) that involves payments after the date hereof, in the aggregate, in excess of $500,000 or (C) that materially restricts or imposes material obligations on the Company and its Subsidiaries; provided that in no event shall the Company settle (or permit to be settled) any suit or proceeding described in Section 5.11 except in accordance with the provisions thereof or (ii) commence any Claim, except with respect to (A) Claims involving amounts less than $500,000 individually or $1,000,000 in the aggregate, or (B) in connection with a breach of this Agreement or any other agreements contemplated hereby; (ix) enter into, amend in any material respect, waive compliance with any material rights with respect to, or cancel or terminate any Material Contract or Contract which if entered into prior to the date hereof would be a Material Contract, in each case other than renewals of Material Contracts in the ordinary course of business with terms and conditions of the renewed Material Contract substantially similar to the existing Material Contract being so replaced; (x) except for the expenditures contemplated by and consistent with past practice if such indebtedness would not result the capital expenditure budget set forth in total indebtedness Section 5.1(b)(x) of the Company and Disclosure Schedule (the Company Subsidiaries “Capital Expenditure Budget”), make, or commit to make, or otherwise authorize any capital expenditures in excess of an amount equal to, in the aggregate, 20% of the total Capital Expenditure Budget for the relevant period; (on a consolidated basisxi) except as required by Law or the terms of any Plan in effect as of the Closing Date exceeding date hereof or as disclosed in Section 5.1(b)(xi) of the Target Debt Cap; Company Disclosure Schedule: (1i) amend increase the compensation or otherwise modify, except benefits of any Company Employee other than increases made in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed for employees with total annual cash compensation of less than $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), 150,000; (ii) grant or pay any amounts performance bonus, change-in-control, retention bonus, severance or termination pay to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), Company Employee; (iii) become a party toestablish, establishadopt, enter into, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of grant any waiver or consent under any Plan; (iv) grant any equity or equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, awards; (v) (A) hire employees in the position of Vice President or abovehire, or (B) terminate the employment of of, any employee in the position of Vice President or above (Company Employee, other than due to terminations for cause), except for individuals who have a total annual cash compensation target (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; including (x) acquire base salary or agree to acquire by merging or consolidating with, or by purchasing a substantial portion wages and (y) bonus and commissions) of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other less than grants of non-exclusive licenses pursuant to license agreements entered into $100,000 in the ordinary course of business consistent with past practice; (vi) except with respect to Company Options and Company RSU Awards, take any action to accelerate the vesting or time of payment of any compensation or benefit under or waive any performance conditions with respect to any Plan or awards made thereunder; (vii) loan or advance any money or other property to any present or former director, officer or employee of the Company or its Subsidiaries; (viii) increase or accelerate the funding obligation or contribution rate of any Plan; (ix) approve, enter into, adopt or establish any obligation to gross-up, indemnify or otherwise reimburse any Company Employee for any Tax incurred by such Company Employee, including under Section 409A or 4999 of the Code; or (x) grant any Company Employee the right to receive an additional payment (including any tax gross up or other payment (including any tax gross up or other payment) as a result of the imposition of any Taxes; (xii) announce, implement or effect any reduction in force, layoff or other program resulting in the termination of employees, in each case, that would trigger the WARN Act; (xiii) make any changes in its methods, practices or policies of financial accounting, except as may be required under Law, rule, regulation or U.S. GAAP, in each case as approved in writing by the Company’s independent public accountants; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or file any amended Tax Returns, settle or compromise any material Tax liabilityliability of the Company or any of its Subsidiaries, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes of the Company or any of its Subsidiaries, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund, incur any material liability for Taxes outside the ordinary course of business or make any material changes in its methods, practices or policies of Tax accounting; (xv) fail to use its reasonable best efforts to maintain in full force and effect the existing insurance policies of the Company and its Subsidiaries or to replace such insurance policies with comparable insurance policies covering the Company, its Subsidiaries and their respective properties, assets and businesses; (xvi) apply for or accept (x) any funding from any Governmental Entity, which is extended to support the Company’s research and development operations, or (y) any material funding from any other than Governmental Entity; (xvii) enter into, engage in or amend any transaction or Contract with any Company Related Party; (xviii) terminate or materially default under any Lease; (xix) transfer, convey or assign any Intellectual Property that is material to the conduct of the business of the Company and its Subsidiaries, taken as required by Lawa whole; (xx) make any material changes to any Privacy Policies or make any material changes in the operation or protection of any material IT Assets; or (xviiixxi) propose, agree to taketo, or make any commitment to to, take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of Prior to Closing, the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent Company shall, and shall cause each of its Subsidiaries toto use their commercially reasonable efforts to cause the cash of the Company and its Subsidiaries to be available for use by or distribution to Parent promptly following the Closing; provided, (ahowever, that nothing contained in this Section 5.1(c) conduct their business shall require the Company or any of its Subsidiaries to take any action, including any corporate action by the Company or any of its Subsidiaries, the execution of any agreement or the making of any filings with any Governmental Entity, prior to the Effective Time if the Company determines in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts good faith that such action could reasonably be expected to (i) maintain and preserve intact their business organizations and business relationshipsresult in Tax obligations or other costs or expense to the Company or any of its Subsidiaries, (ii) retain adversely affect the services Company's or any of their officers and employeesits Subsidiaries’ Tax or financial reporting positions, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto Company and its Subsidiaries to (i) obtain any necessary approvals operate their respective businesses in the ordinary course, consistent with past practice, including by impairing the ability of any Governmental Entity required for the transactions contemplated hereby Company and its Subsidiaries to meet their respective working capital requirements, or (iiiv) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated herebyprohibited by Law. (d) During the period from the date of Nothing contained in this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent is intended to Parent or to another wholly owned Subsidiary of give Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of their equity interests or any other securities thereof or any rightsthis Agreement, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in complete control and supervision over its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in and its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d)Subsidiaries’ respective operations.

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditionedAgreement, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Pre-Closing Period the Company Parties shall, shall operate and shall cause the Company Subsidiaries to, (a) conduct their carry on its business only in the ordinary course consistent with past business practices and substantially as currently operated as of the date hereof. Consistent with the foregoing, the Company shall use commercially reasonable efforts consistent with past practice to keep and maintain its assets and properties in compliance with good operating condition and repair (subject to normal wear and tear) and to preserve, maintain the value of, renew, extend and keep in full force and effect all applicable LawsIntellectual Property of the Company, (b) use reasonable best efforts and to (i) maintain its business organization intact and to preserve intact their business organizations and business relationshipsthe goodwill of the material Company Suppliers, (ii) retain the services of their officers and contractors, licensors, employees, customers, distributors and others having business relations with the Company (iii) maintain their rights and Permitsexcept, and (c) take no action that would reasonably be expected to adversely affect or delay in each case, with the ability express prior written approval of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated herebyParent). (b) During the period from the date of Except as expressly required by this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the express prior written consent approval of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the Pre-Closing Period the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (iiA) make, declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions (whether in the form of cash, equity or property) in respect of of, any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter)its capital stock, or otherwise make any payments to its Stockholders in their capacity as such, (B) split, combine or reclassify any of their equity interestsits capital stock or issue, sell or repurchaseauthorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock (other than any issuances of its securities upon the exercise of any Company Options outstanding on the date hereof or upon the conversion of any outstanding convertible securities that are convertible into such securities) or (C) purchase, redeem or otherwise acquire, directly or indirectly, acquire any shares of their equity interests capital stock of the Company or any other securities thereof or thereof; (ii) make any rights, warrants or options to acquire any such equity interests or other securitieschange in its line of business; (iii) grant any optionsamend the Company Charter, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests Company Bylaws or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company EntityVoting Agreement; (iv) issue, deliver grant, sell, redeem, repurchase or sell encumber any Shares or authorize other securities of the Company, other than repurchases of unvested shares of Company Common Stock from terminating employees or propose other service providers pursuant to Repurchase Options applicable to those shares; issue, grant, sell, redeem, repurchase or encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, delivery or sale ofsale, or purchase or propose the purchase of, any equity interests, Voting Debt pledge or other securities, securities convertible into equity interests, Voting Debt disposition of any Shares or other securities, securities of the Company or subscriptions, rights, warrants or options to acquire, or make any other agreements or commitments changes in the equity capital structure of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securitiesthe Company; (v) sellmake any capital expenditure or enter into any Contract or commitment therefor, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except capital expenditures or commitments for capital expenditures in the ordinary course of business consistent with past practice if such indebtedness would business practices in an aggregate amount not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Capto exceed [*]; (1vi) amend or otherwise modify, except other than in the ordinary course of businessbusiness consistent with the Company’s past business practices, (A) enter into any Contract or other instrument which would have been required to be set forth on Schedule 5.9(a), Schedule 5.10, Schedule 5.11(c), Schedule 5.14 or Schedule 5.17(a) if in effect on the date hereof, (B) enter into any Contract which requires the giving of notice to, or violate, in each case in any material respect, the terms consent or approval of, any Material Contractthird party to consummate the transactions contemplated by this Agreement, (C) make any modification to any existing Company Agreement or to any Governmental Permit, (D) waive, release or assign any rights or claims under, fail to take a required action under, or commit any default under, any Company Agreement, or (2E) createenter into any contract that grants any license, renew covenant not to ▇▇▇ or amend similar interest or benefit, exclusive or otherwise, in, to or under, or otherwise transfer, assign, or encumber, any Owned Intellectual Property or Licensed Intellectual Property or any right to any Product; (vii) enter into any Contract orfor the purchase, except lease (as may be required by applicable Law, lessee) or other binding obligation occupancy of real property or exercise any option to purchase real property or any option to extend a Company Entity containing (A) any restriction lease listed on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or businessSchedule 5.9(a); (viii) make sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any capital expendituresEncumbrance on, (any of the assets or properties of the Company, other than drydocking capital expenditures) capital additions inventory and minor amounts of personal property sold or capital improvements except otherwise disposed of for fair value in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregatebusiness practices and other than Permitted Encumbrances; (ix) except as required cancel any debts owed to or claims held by existing written Contracts or the Company Benefit Plans existing as of (including the date hereof, (i) increase in any manner the compensation or benefits settlement of any of the current claims or former directors or officers of the Company Entities (together, the “Covered Employees”), (iilitigation) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business consistent with past business practices; (x) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligation (as defined in connection with reimbursement Statement of expenses Financial Accounting Standards No. 13); (xi) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected, other than in the ordinary course of business)business consistent with past business practices; (xii) delay or accelerate payment of any account payable or other liability beyond or in advance of its due date, or the date when such liability would have been paid or the dates when the same would have been collected, other than in the ordinary course of business consistent with past business practices; (iiixiii) become a party toallow the levels of raw materials, establishsupplies or work in process of the Company to vary in any material respect from the levels customarily maintained by the Company unless the maintenance of such levels such materials, amendsupplies or work in process are not necessary for the Company to conduct its business substantially as conducted as of the date hereof; (xiv) make, commence participation inor agree to make, make any adjustment to, terminate payment of cash or commit itself distribution of assets to the adoption Stockholders; (xv) increase (other than as required by existing Contracts listed on Schedule 5.17(k)) the compensation payable to any officer, manager, employee, non-employee member of the board of directors or consultant of the Company, or amend (other than as required by applicable Law) any equityexisting, or establish any new, profit-based compensation plansharing, compensation (including any employee co-investment fund)bonus, severanceincentive, deferred compensation, insurance, pension, retirement, profit-sharingseverance, medical, hospital, disability, welfare benefit or other benefit plans or arrangements for officers, managers, employees, non-employee benefit planmembers of the board of directors or consultants of the Company, enter into any new Contract with any officer, manager, employee non-employee member of the board of directors or consultant of the Company with respect to such compensation or benefits, or agreement grant any new Company Options or employment agreement issue any new Unvested Share Awards to any such person; (xvi) make any change in the accounting principles and practices used by the Company applied in the preparation of the financial statements contained on Schedule 5.4, except as required by U.S. GAAP; (xvii) prepare or file any Tax Return inconsistent with past business practices or, on any such Tax Return, take any position, make any election, or for the benefit of adopt any Covered Employee method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods, except as otherwise required by Law; (or newly hired employees), (ivxviii) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) fail to (A) hire employees in the position prosecute or maintain applications for registration of Vice President any Owned Intellectual Property or aboveany Exclusively Licensed Intellectual Property, or (B) terminate enforce any Exclusively Licensed Intellectual Property, for which the employment of any employee in Company has the position of Vice President contractual right to prosecute and maintain applications or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (enforce or any term Owned Intellectual Property; (xix) (A) make any submissions to, or correspond with, the FDA relating to the conduct or design of similar import) in clinical trials sponsored or proposed by the Company or involving any employment agreementProducts, including those related to new trials or changes or amendments to protocols or clinical trial documents for an existing trial, and clinical holds or regarding any other matter, or (viiB) adoptmake any submissions to, enter into or amend correspond with, any collective bargaining agreement Institutional Review Board regarding a clinical trial sponsored or other arrangement relating proposed by the Company or involving any Products, including those related to a labor union new trials or organized laborchanges or amendments to the protocol or clinical trial documents for an existing trial, and clinical holds, except in each case, if obtaining prior written approval of Parent is not reasonably practicable due to requirements of Law; (xxx) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by purchasing all or a substantial portion of the capital stock of, or by any other manner, any business or any other Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownershipdivision thereof, or grant (B) any license or other rights, to any Person of or in respect of any material Intellectual Propertyassets, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practicebusiness, that are material to the Company; (xivxxi) make any material investment either by purchase of stock or securitiespay, contributions to capitaldischarge, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise satisfy any Tax liabilityclaims, liabilities or obligations, other than as required by Lawin the ordinary course of business; or (xviiixxii) propose, agree to take, enter into any Contract or make any commitment to take any of the actions action prohibited by this Section 5.1(b8.6(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of ParentThe Company agrees that, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from and after the date of this Agreement hereof and continuing until prior to the Effective Time or the date, if any, on which this Agreement is earlier termination of terminated pursuant to Section 7.1 (the "Termination Date"), and except as may be otherwise agreed in writing by Parent, as may be expressly permitted pursuant to this Agreement, the Company Parties shall, and shall cause the Company Subsidiaries to, (a) conduct their business as set forth in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required $2.8 million capital expenditure budget for the transactions contemplated hereby Company's fiscal year ending March 31, 2003 (the "Budget") or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) 5.1 of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectlySchedule: (i) cause or permit any amendmentthe business of the Company and each Subsidiary shall be conducted only in the usual, modificationregular and ordinary course and substantially in the same manner as heretofore conducted, alteration or rescission and each of any the Company Entity Charter Documentand its Subsidiaries shall use its reasonable best efforts to preserve its business organization intact, keep available the services of its current officers and employees and maintain its existing relations with franchisees, customers, suppliers, creditors, business partners and others having business dealings with it (provided that the Parent and Purchaser acknowledge that the Company is in breach of the Credit Agreement and will be in breach of the Credit Agreement at the Effective Time), to the end that the goodwill and ongoing business of each of them shall be unimpaired at the Effective Time; (ii) makeneither the Company nor any Subsidiary shall: (A) amend its certificate of incorporation or by-laws or similar organizational documents, (B) issue, sell, transfer, pledge, dispose of or encumber any shares of any class or series of its capital stock or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of any class or series of its capital stock, other than Shares reserved for issuance on the date hereof pursuant to the exercise of Company Options outstanding on the date hereof, (C) declare, set aside or pay any dividends dividend or distributions (whether other distribution payable in the form of cash, equity stock or property) in property with respect to any shares of any class or series of their equity interests its capital stock (other than dividends or distributions a cash dividend paid by any wholly owned a Subsidiary of the Company to the Company or to another wholly wholly-owned Subsidiary subsidiary of the Company and other than the payment of the Series A Quarterly Distribution Company) (as defined in the Company Partnership AgreementD) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any shares of their equity interestsany class or series of its stock; (E) redeem, purchase or otherwise acquire directly or indirectly any shares of any class or series of its capital stock, or repurchase, redeem any instrument or otherwise acquire, directly security which consists of or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options includes a right to acquire such shares; or (F) amend the Rights Agreement in any such equity interests or other securities;respect. (iii) grant neither the Company nor any optionsSubsidiary shall modify, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests amend or other equity-based award with respect to the Units under terminate any material Company Benefit Plan Agreement or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancelwaive, release or assign any material amount of indebtedness to any Person rights or any material claims against any Personclaims; (viiv) neither the Company nor any Subsidiary shall: (A) incur or assume any indebtedness for borrowed money long-term or short-term indebtedness; (B) assume, guarantee, endorse or otherwise as an accommodation become liable or responsible (whether directly, contingently or otherwise) for the obligations of any Third Party other Person; (C) make any loans, advances or capital contributions to, or investments in, any other Person (other than to, from, or in wholly owned Subsidiaries of the Company); (D) enter into any Company Subsidiariesmaterial commitment or transaction (including, but not limited to, any capital expenditure or purchase, sale or lease of assets or real estate), except in the ordinary course of business and as set forth in the Budget; or (E) incur or modify the terms of any indebtedness or other liability (other than trade payables or the lease of the premises located at South Leg Ground Floor, "B" Building, BAE Systems, West Hanningfield Road, Great Baddow, Chelmsford, England arising in the ordinary course of business); provided that the Company and Purchaser may enter into the Loan Agreement, the Forbearance Agreement and the Lender Discharge Agreement; (v) neither the Company nor any Subsidiary shall transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any assets other than in the ordinary and usual course of business and consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cappractice; (vi) except as otherwise specifically provided in this Agreement, (A) make any change in the compensation payable or to become payable (1) amend to (x) any of its officers or otherwise modifydirectors, or (y) employees, agents or consultants or to Persons providing management services, in each case earning in excess of $50,000 per annum, except as expressly required by any agreement now in effect; or (2) other than in the ordinary course of business, to any such employees, agents or violateconsultants or to Persons providing management services, in each case in any material respect, the terms of, any Material Contract, earning $50,000 or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, less per annum; or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining employment, severance, consulting, termination or other agreement or other arrangement relating employee benefit plan or make any loans to a labor union any of its officers, directors, employees, Affiliates, agents or organized laborconsultants or make any change in its existing borrowing or lending arrangements or programs for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise; (xvii) acquire except as otherwise specifically contemplated by this Agreement, pay or make any accrual or arrangement for payment of any pension, retirement allowance or other employee benefit pursuant to any existing plan, agreement or arrangement to any officer, director, employee or Affiliate or pay or agree to acquire by merging pay or consolidating withmake any accrual or arrangement for payment to any officer, director, employee or by purchasing a substantial portion Affiliate of the assets of, or by Company of any other manner, any business or any Person or otherwise acquire or agree amount relating to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practicesunused vacation days, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into payments and accruals made in the ordinary course of business consistent with past practice; (xiv) make , adopt or pay, grant, issue, accelerate or accrue salary or other payments or benefits pursuant to any material investment either by purchase of pension, profit-sharing, bonus, extra compensation, incentive, deferred compensation, stock purchase, stock option, stock appreciation right, group insurance, severance pay, retirement or securitiesother employee benefit plan, contributions to capital, property transfersagreement or arrangement, or purchase any employment or consulting agreement with or for the benefit of any property director, officer, employee, agent or assets of any consultant, whether past or present other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminatethan in accordance with employee benefit plans, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax electionagreements, or settle or compromise any Tax liability, other than arrangements as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from effect on the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreementhereof, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business except payments made in the ordinary course of business consistent with past practice and practice, or amend in compliance any respect any such existing plan, agreement or arrangement in a manner inconsistent with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby.foregoing; (dviii) During neither the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which Company nor any Subsidiary shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly properties or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner assets to fail to be covered by insurance policies reflecting coverage that adversely affects the terms of the Parent Common Stockis consistent with prudent industry practice; (iiix) makeneither the Company nor any Subsidiary shall pay, declarerepurchase, set aside discharge or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of satisfy any of their equity interests its claims, liabilities or obligations (other than dividends absolute, accrued, asserted or distributions by any wholly owned Subsidiary of Parent to Parent unasserted, contingent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securitiesotherwise), other than in the repurchase ordinary course of no more business and other than 1,685,725 shares the payment to Lenders of Parent Common Stockamounts due under Amendment No. 2 to the Forbearance Agreement and Amendment No. 9 to the Credit Agreement as set forth on the Company Disclosure Schedule, payments to Argus Management Corporation and payment of reasonable fees and expenses to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and TM Capital Corp. related to the transactions contemplated herein; (iiix) implement or neither the Company nor any Subsidiary will adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation liquidation, dissolution, merger, consolidation, restructuring, recapitalization or dissolutionother reorganization of the Company or any Subsidiary (other than the Merger); (vxi) neither the Company nor any Subsidiary will (i) change any of the accounting methods used by it unless required by GAAP or (ii) make any material election relating to Taxes, change any material election relating to Taxes already made, adopt any material accounting method relating to Taxes, change any material accounting method relating to Taxes unless required by GAAP, enter into any closing agreement relating to Taxes, settle any claim or assessment relating to Taxes or consent to any claim or assessment relating to Taxes or any waiver of the statute of limitations for any such claim or assessment or file any amended Tax Return or claim for refund, except, provided that in each case the Company has afforded the Parent an opportunity for review (i) the Company may settle its Tax methodsexisting IRS examination adjustments and, principles in connection therewith enter into a Closing Agreement, if required, and (ii) the Company may file amended tax returns to carry back its 2002 net operating loss and to further carryback other losses and adjustments resulting from such carryback; (xii) neither the Company nor any Company Subsidiary will take, or electionsagree to commit to take, any action that would or is reasonably likely to result in (A) any representation or warranty in Article III hereof being untrue or incorrect in any material respect, or (B) any of the conditions to the Offer set forth in Annex A hereto or any of the conditions to the Merger set forth in Article VI hereof not being satisfied, except as may otherwise be permitted under section 5.7 hereof; (xiii) the Company shall not alter, amend or waive, or consent or agree to any alteration, amendment or waiver of, any provision of the Loan Discharge Agreement, the Credit Agreement, the Forbearance Agreement, or any other agreement or instrument executed in connection therewith; or (vixiv) proposeneither the Company nor any if its Subsidiaries will enter into an agreement, agree contract, commitment or arrangement to takedo any of the foregoing, or make to authorize, recommend, propose or announce an intention to do any commitment of the foregoing. (b) Parent agrees that, from and after the date hereof and prior to the earlier of the Effective Time and the Termination Date, and except as may be agreed in writing by the Company or as may be permitted pursuant to this Agreement, Parent shall not, and shall not permit any of its Subsidiaries to (i) agree, in writing or otherwise, to take any action which would result in any of the actions prohibited conditions to the Offer set forth in Annex A hereto or any of the conditions to the Merger set forth in Article VI hereof not being satisfied or (ii) delay the consummation of the Offer, including by this Section 5.1(d)application of Rule 14e-5 under the Exchange Act.

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with 6.1 Conduct of Business of the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during Company. During the period from commencing on the date of this Agreement hereof and continuing until the Effective Time or the earlier termination of this AgreementTime, the Company Parties shalland the Equityholders agree that the Company, and shall cause except as otherwise expressly contemplated by this Agreement or agreed to in writing by the Company Subsidiaries to, Parent: (a) conduct their will carry on its business only in the ordinary course and consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby.practice; (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall will not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside declare or pay any dividends dividend on or distributions make any other distribution (whether in the form of cash, equity or propertyhowever characterized) in respect of any shares of their equity interests its capital stock; (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreementc) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquirewill not, directly or indirectly, redeem or repurchase, or agree to redeem or repurchase, any shares of their equity interests its capital stock; (d) will not amend its Certificate of Incorporation or By-Laws; (e) will not issue, or agree to issue, any shares of its capital stock, or any other securities thereof or any rightsoptions, warrants or options other rights to acquire shares of its capital stock, or any such equity interests securities convertible into or other securitiesexchangeable for shares of its capital stock; (iiif) grant will not combine, split or otherwise reclassify any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value shares of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entityits capital stock; (ivg) issuewill not form a Subsidiary; (h) will use its commercially reasonable best efforts to preserve intact its present business organization, deliver keep available the services of its officers and key employees and preserve its relationships with clients and others having business dealings with it to the end that its goodwill and ongoing business shall not be materially impaired at the Effective Time; (i) will not (i) make any capital expenditures individually in excess of $4,000 or sell in the aggregate in excess of $8,000, (ii) enter into any license, distribution, OEM, reseller, joint venture or authorize other similar agreement, (iii) enter into or propose the issuance, delivery or sale terminate any lease of, or purchase or propose the purchase ofsell, any equity interestsreal property, Voting Debt (iv) enter into any leases of personal property involving individually in excess of $4,000 annually or other securitiesin the aggregate in excess of $8,000 annually, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sellincur or guarantee any additional indebtedness for borrowed money, transfer, pledge, lease, license(vi) create or permit to become effective any security interest, mortgage, encumber lien, charge or otherwise dispose of any of other encumbrance on its material properties or assets, or cancel, release or assign (vii) enter into any material amount agreement to do any of indebtedness to any Person or any material claims against any Personthe foregoing; (vij) incur will not adopt or amend any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible Benefit Plan for the obligations benefit of Employees, or increase the salary or other compensation (including, without limitation, bonuses or severance compensation) payable or to become payable to its Employees or accelerate, amend or change the period of exercisability or the vesting schedule of options granted under any Third Party stock option plan or agreements except as specifically required by the terms of such plans or agreements, or enter into any agreement to do any of the foregoing; (other than k) will not accelerate receivables or delay payables; (l) will promptly advise the Parent of the commencement of, or threat of (to the extent that such threat comes to the knowledge of the Company, or any of the Equityholder), any claim, action, suit, proceeding or investigation against, relating to or involving the Company Subsidiaries)or any of its Subsidiaries or any of their directors, officers, employees, agents or consultants in connection with their businesses or the transactions contemplated hereby that could reasonably be expected to have a Company Material Adverse Effect; (m) will use its commercially reasonable efforts to maintain in full force and effect all insurance policies maintained by the Company on the date hereof; and (n) will not enter into any agreement to dissolve, merge, consolidate or, except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness course, sell any material assets of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of businessCompany, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any Person corporation, partnership or other business organization or division, or otherwise acquire or agree to acquire any assets which are material, individually or in excess of $1,000 in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as (i) set forth in Section 6.1(a) of the Company Disclosure Schedule, (ii) expressly contemplated or permitted by this Agreement Agreement, or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned(iii) required by Law, during the period from the date of this Agreement and continuing until to the earlier of the Effective Time or the earlier termination of this AgreementAgreement in accordance with Section 8.1, unless Parent otherwise agrees in writing, the Company Parties shall, and shall cause each of the Company Subsidiaries to, (aA) conduct their its business in all material respects in the ordinary course of business consistent with past practice and in compliance with all applicable Laws, (bB) use its reasonable best efforts to (i) maintain and preserve substantially intact their its business organizations organization and the goodwill of those having business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated herebyrelationships with it. (b) During Without limiting the period from generality of the date of this Agreement foregoing, and continuing until the Effective Time or the earlier termination of this Agreement, except as (1) as set forth in Section 5.1(b6.1(b) of the Company Disclosure LetterSchedule, (2) as expressly contemplated or permitted by this Agreement, or (3) required by Law, during the period from the date of this Agreement to the earlier of the Effective Time or the termination of this Agreement in accordance with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditionedSection 8.1, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectlywithout the prior written consent of Parent: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (ivA) issue, deliver sell, grant, dispose of, pledge or sell otherwise encumber, or authorize or propose the issuance, delivery sale, grant, disposition or sale pledge or other encumbrance of, (1) any additional shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of its capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of its capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of its capital stock, other than upon exercise of Company Options or settlement of Company RSUs outstanding on the date of this Agreement (each in accordance with the terms thereof on the date hereof), or (2) any other securities in respect of, in lieu of, or in substitution for, any shares of its capital stock outstanding on the date of this Agreement, (B) redeem, purchase or otherwise acquire, or propose the to redeem, purchase ofor otherwise acquire, any equity interests, Voting Debt of its outstanding shares of capital stock or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rightsany options, warrants or options convertible securities or other rights to acquireacquire any shares of its capital stock, or (C) split, combine, subdivide or reclassify any shares of its capital stock or declare, set aside for payment or pay any dividend, or make any other agreements or commitments distribution in respect of any character obligating it to issueshares of capital stock or any options, any such equity interests, Voting Debtwarrants, convertible securities or other securitiesrights to acquire any capital stock, or otherwise make any payments to stockholders in their capacity as such, other than dividends declared or paid by any Company Subsidiary to any other Company Subsidiary or to the Company; (vii) other than borrowings under the Company's existing line of credit facility and guaranties of Real Property Leases in the ordinary course of business, create, incur, assume or modify in any material respect any indebtedness for borrowed money, or issue any note, bond or other debt security, or guarantee any indebtedness, in such cases in excess of $1,000,000 in the aggregate or make any loans, advances (other than advances to employees of the Company or any Company Subsidiary in the ordinary course of business) or capital contributions to or investments in any other Person other than to any of the Company and the Company Subsidiaries; (iii) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assetsassets with a value in excess of $2,000,000 to any Person other than the Company or a wholly-owned Company Subsidiary, or cancel, release or assign any indebtedness in excess of $2,000,000 to any such Person, except (A) pursuant to contracts and agreements in force at the date of this Agreement or renewals of any such contract or agreement, (B) pursuant to plans disclosed in the Company Disclosure Schedule, (C) the disposition of property identified as "excess property" on Section 6.1(b)(iii) of the Company Disclosure Schedule or (D) sales of inventory in the ordinary course of business; (iv) grant a license (whether written or oral but excluding any renewal, consistent with past practice, of any existing license) to, or any other rights with respect to, any material amount of indebtedness Company Intellectual Property to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result practice; provided in total indebtedness of no event may the Company and or the Company Subsidiaries grant a license (on a consolidated basiswhether written or oral but excluding any renewal, consistent with past practice, of any existing license) as of that would be material to the Closing Date exceeding the Target Debt CapCompany's licensing program; (1v) amend enter into any Contract containing any non-competition covenant binding upon the Company or otherwise modify, except any Company Subsidiary (other than Real Property Leases or license agreements in the ordinary course of businessbusiness and not otherwise prohibited by this Section 6.1); (vi) make any material acquisition or investment (other than purchases of inventory, supplies and other assets in the ordinary course of business and investments made in accordance with the Company's cash management policies in the ordinary course of business consistent with past practice), whether by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or violatepurchases or exclusive licenses of any property or assets, in each case of or in any material respectPerson other than a wholly-owned Company Subsidiary or to the extent contemplated by the Company's capital expenditure budget for Fiscal Year 2006 (as most recently updated if applicable), a copy of which has been provided to Parent prior to the terms of, any Material Contractdate of this Agreement, or for the following fiscal year of the Company, if and to the extent applicable; (2vii) createtake any action (or fail to take any action) that would have the effect of allowing any employee who is not currently a participant in the ▇▇▇▇▇ ▇▇▇▇▇ Holdings, renew Inc. Senior Officer Change in Control Compensation Plan and set forth on Section 4.12(h) of the Company Disclosure Schedule, to become a participant or amend become eligible for any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or businessbenefit under such plan; (viii) except for binding written commitments outstanding as of the date hereof and set forth on Section 4.12(a) of the Company Disclosure Schedule, provide any outplacement services to any employee or former employee of the Company at a cost in excess of $50,000 in the aggregate; provided that the Company shall be permitted to provide outplacement services to "Tier 1" and "Tier 2" participants in an aggregate amount not to exceed $125,000 as required pursuant to the ▇▇▇▇▇ ▇▇▇▇▇ Holdings, Inc. Senior Officer Change in Control Compensation Plan; (ix) (A) increase or decrease the rate or terms of compensation or benefits payable by the Company or any of the Company Subsidiaries to any of their respective directors, officers or employees, (B) enter into any employment or severance agreement with or grant or increase or otherwise modify the rate or terms of any bonus, pension, severance or other employee benefit plan, policy, agreement or arrangement with, for or in respect of any of their respective directors, officers or employees, or otherwise make any capital expendituresmaterial amendment to any employee benefit plan, (C) establish, adopt, enter into or terminate any collective bargaining agreement or Benefit Plan or any employee benefit plan, policy or arrangement that, if it were in effect on the date of this Agreement, would be a Benefit Plan, or take any affirmative action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding of any of the foregoing, or (D) hire any person as a director or officer of the Company or any Company Subsidiary whose annual base salary exceeds $150,000, except in any such case for grants, increases or other than drydocking capital expendituresactions described in the foregoing clauses (A) capital additions and (B), (1) required pursuant to the terms of plans or capital improvements except agreements in effect on the date of this Agreement, (2) occurring in the ordinary course of business consistent with past practice with respect to any Person who is not a director or officer of the Company or a Company Subsidiary or (3) required by Law; provided, however, that notwithstanding this Section 6.1(b)(vii) or anything else to the contrary in amounts that do not exceed $3.0 million individually this Agreement, the Company shall be permitted to enter into employment agreements with the individuals set forth on Section 6.1(b)(vii) of the Company Disclosure Schedule for the purpose of assuring continuity of management on such terms as the Company and Parent shall mutually agree on or $6.0 million prior to the Effective Date (in which case all applicable Sections of the aggregateCompany Disclosure Schedule shall be deemed amended as of the date of this Agreement to reflect disclosure of, and the Company's entry into, such employment agreements); (ixx) amend the Company Certificate or Company By-Laws (or the equivalent governing documents of the Company Subsidiaries); (xi) make any material change in accounting methods, principles, or practices, except as required by GAAP or by a Governmental Entity; (A) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation inapplicable Law, make or change any adjustment toelection in respect of Taxes or adopt or change any material accounting method in respect of Taxes, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of enter into any employee in the position of Vice President tax allocation agreement, tax sharing agreement or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment closing agreement, or (viiC) adoptsettle or compromise any claim, enter into notice, audit report or amend any collective bargaining agreement or other arrangement relating assessment in respect of Taxes individually in excess of $500,000 or, except settlements consented to a labor union or organized laborby Parent, in the aggregate in excess of $2,000,000; (xxiii) acquire write up, write down or agree to acquire by merging or consolidating with, or by purchasing a substantial portion write off the book value of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are materialassets, individually or in the aggregate, to for the Company or and the Company Entities (Subsidiaries taken as a whole, in excess of $1,000,000, except in accordance with GAAP consistently applied; (xiv) subject to Section 6.3(c), take any action to exempt any Person (other than Parent or Merger Sub) or any action taken by such Person from, or make such Person or action not subject to, (A) the provisions of Section 203 of the DGCL, if applicable, or (B) any other state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares; (xv) implement any layoff of employees that would implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended; (xvi) settle any litigation (or threatened litigation) for an amount in excess of $375,000 per litigation net of insurance proceeds or, except for settlements consented to by Parent, in the aggregate in excess of $1,500,000 net of insurance proceeds; (A) amend or modify in any material respect or terminate (other than in accordance with its terms) any Material Contract or (B) enter into any Material Contract (other than (1) purchases of inventory, supplies and assets in the ordinary course of business, (2) renewals of existing Real Property Leases in the ordinary course of business and on terms reflecting arms-length negotiations and otherwise consistent with the existing Real Property Leases, (3) except for renewals of existing Real Property Leases, as contemplated by the Company's budget for Fiscal Year 2006 (as most recently updated if applicable), a copy of which has been provided to Parent prior to the date of this Agreement, and (4) with respect to the other subsections of this Section 6.1, Contracts not prohibited thereby); (xixviii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice, commence or undertake any extraordinary sales events or significant discounting of merchandise; (xivxix) make take any actions intended to materially change in a manner adverse to the Company or the Company Subsidiaries, relationships with material investment either by purchase of stock product vendors and suppliers; provided, however, that the foregoing shall not prohibit the Company or securities, contributions the Company Subsidiaries from taking any action in good faith and in a manner consistent with its prior practices to capital, property transfers, or purchase of any property or assets of any other Personenforce its existing agreements with such vendors and suppliers; (xvxx) except as permitted by Section 6.3, amend, modify or waive any provision of any confidentiality agreement (or other similar agreement) or any agreement that restricts a Person's ability to acquire securities of, or other interests in, the Company; (xxi) voluntarily fail to maintain in full force and effect or fail to use reasonable best efforts to replace or renew material insurance policies existing as of the date hereof and covering the Company or the Company Subsidiaries and their respective properties, assets and businesses; (xxii) sell or enter into any material agreement with respect to the use or ownership of the Company's Groveport, Ohio distribution center; (xxiii) open or commit to open any retail locations, or close, or commit to close any retail locations; or (xxiv) terminate, other than for cause, any employee covered by the Change-in-Control Plan; (xxv) take any action to exempt any Third Party intended to, or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions which the Company reasonably expects will, change the status of its organizational documents or terminatecontrol of ▇▇▇▇▇ ▇▇▇▇▇ GmbH & Co. KG, amend or waive any provisions as control is defined under the German Act Against Restraints of any confidentiality or standstill agreements in place with any Third PartiesCompetition; (xvixxvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b)6.1. (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except (i) as expressly contemplated or permitted by this Agreement Agreement, (ii) as required by any applicable Law applicable to the Company or any of its Subsidiaries, (iii) as set forth on Section 5.1(a) of the Company Disclosure Schedule or (iv) with the prior written consent of Parent, Parent (which consent shall not be unreasonably withheld, delayed withheld or conditioneddelayed), during the period from the date of this Agreement and continuing until to the Effective Time or the earlier termination of this AgreementTime, (A) the Company Parties shall, and shall cause the Company each of its Subsidiaries to, (a1) conduct their its business in all material respects in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b2) use reasonable best efforts to (i) maintain and preserve intact their its business organizations organization, and its rights, authorizations, franchises and other authorizations issued by Governmental Entities, preserve its business relationshipsrelationships with Authorized Delegates, (ii) banks, customers, vendors and others doing business with it and retain the services of their its officers and employees, key employees and (iiiB) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company its Subsidiaries to, directly or indirectly: (i) cause (A) amend or permit otherwise change the Company’s certificate of incorporation or bylaws and (B) with respect to Subsidiaries of the Company, amend or otherwise change their applicable organizational documents in any amendment, modification, alteration or rescission of any Company Entity Charter Documentmaterial respect; (ii) makeadjust, declaresplit, set aside combine or pay reclassify any dividends capital stock or distributions (whether in the form other equity interest or enter into a plan of cashconsolidation, equity merger, share exchange, share acquisition, reorganization or property) in respect of complete or partial liquidation with any of their equity interests person (other than dividends any consolidation, merger or distributions reorganization solely among wholly owned Subsidiaries of the Company); (iii) issue, grant, sell, dispose of, redeem or repurchase any equity securities or equity-based award in the Company or any of its Subsidiaries, or securities convertible into, or exchangeable or exercisable for, any such equity securities or awards, or any rights of any kind to acquire any such equity securities or such convertible or exchangeable securities, other than (A) the issuance of Shares upon the exercise of Company Options or the conversion of Series D Preferred Stock, (B) upon the expiration of any restrictions on any Company RSU, (C) by any a wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company or (D) issuances of Company Options and other than the payment of the Series A Quarterly Distribution (as defined Company RSU to employees and directors in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in amounts consistent with Section 5.1(b)(ii5.1(a) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company EntitySchedule; (iv) issuedeclare, deliver set aside, make or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, pay any equity interests, Voting Debt dividend or other securitiesdistribution, securities convertible into equity interestspayable in cash, Voting Debt stock, property or otherwise, with respect to any of Common Stock, Series D Preferred Stock or other securities, shares of capital stock or subscriptions, rights, warrants equity interests (except for any dividend or options distribution by a wholly owned Subsidiary of the Company to acquire, the Company or other agreements or commitments another wholly owned Subsidiary of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securitiesthe Company); (v) sell, exclusively license, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of (whether by merger, consolidation or sale of stock or assets or otherwise), any of its material properties or assets, rights or cancel, release businesses of the Company or assign its Subsidiaries (including any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations capital stock of any Third Party (other than any Company Subsidiaries), except in each case other than dispositions (A) of equipment and other assets in the ordinary course of business consistent with past practice if such indebtedness would or (B) dispositions of any assets, rights or businesses or the abandonment or failure to maintain any Registered IP not result exceeding $1,000,000 individually or $2,000,000 in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Capaggregate; (1vi) amend acquire (whether by merger, consolidation or otherwise modifyacquisition of stock or assets or otherwise) any corporation, except in the ordinary course of business, partnership or violateother business organization or division thereof or any assets, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing than (A) any restriction on the ability purchases of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (equipment and other than drydocking capital expenditures) capital additions or capital improvements except assets in the ordinary course of business consistent with past practice in amounts that do or (B) acquisitions not exceed exceeding $3.0 million 2,000,000 individually or $6.0 million 5,000,000 in the aggregate; (ixvii) except as required by existing written Contracts (A) incur, assume, refinance or Company Benefit Plans existing as of the date hereof, (i) increase in guarantee any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement indebtedness for borrowed money (other than base salary indebtedness among the Company and/or wholly owned Subsidiaries) or issue any debt securities, or assume or guarantee any indebtedness for borrowed money of any person, except for borrowings in the ordinary course of business or in connection consistent with reimbursement of expenses past practice under the Company’s revolving credit facility (as set forth in the ordinary course Credit Agreement) in an amount not to exceed $5,000,000 outstanding at one time (with the Company permitted to replace, renew or extend such revolving credit facility prior to its expiration on September 28, 2019 on terms no less favorable, taken as a whole (including with respect to repayment and termination of business), (iiisuch facility) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself than those provided in the Credit Agreement in effect as of the date of this Agreement; provided that the Company remains subject to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (ivobligation set forth above to not borrow more than $5,000,000 outstanding at one time under such facility) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of enter into any employee in the position of Vice President swap or above hedging transaction or other derivative agreement (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements forward contract entered into in the ordinary course of business consistent with past practice); (viii) make any loans, advances or capital contributions to, or investments in, any other person (other than to any wholly owned Subsidiary of the Company) in excess of $1,000,000 individually or $2,000,000 in the aggregate; (ix) enter into any Contract involving or providing for the settlement of, or other arrangements with respect to, any Claims or threatened Claim (or series of related Claims) (A) with a Governmental Entity (except settlements, or other arrangements, for an immaterial monetary fine), (B) that materially restricts or imposes material obligations on the Company or (C) that involves payments by the Company or any of its Subsidiaries after the date hereof in excess of $1,000,000 individually and $2,000,000 in the aggregate (excluding any amounts that may be paid under existing insurance policies), provided that this clause (ix) shall not apply to any settlement of any suit or proceeding described in Section 5.11, which shall be governed by the provisions thereof; (x) except in the ordinary course of business consistent with past practice, enter into, amend in any material respect, waive compliance with any material rights with respect to, or cancel or terminate any Material Contract or Contract which if entered into prior to the date hereof would be a Material Contract (with the Company to use reasonable best efforts to notify Parent promptly thereafter of any such actions (which notification may be provided by email or telephonically to representatives of Parent)); (xi) except for the expenditures contemplated by and consistent with the 2017 and 2018 capital expenditure budgets set forth on Section 5.1(a)(xi) of the Company Disclosure Schedules (the “Capital Expenditure Budget”), make, or commit to make, or otherwise authorize any capital expenditures in excess of $2,000,000 in 2017 or $2,000,000 in 2018; (xii) except as required by the terms of any Plan or employment agreement in effect as of the date hereof or as disclosed in Sections 3.12(a) or 5.1(a)(xii) of the Company Disclosure Schedule: (A) increase the compensation or benefits of any Company Employee, except, in the ordinary course of business consistent with past practice, for (1) increases to the annual rates of base salary or wages of Company Employees in an amount not to exceed 3.5% in the aggregate and (2) employee welfare benefits in the ordinary course of business consistent with past practice as part of the Company’s regular annual enrollment program; (B) grant or pay any cash bonus, change-in-control, retention bonus, severance or termination pay to any Company Employee; (C) establish, adopt, enter into, amend, terminate or grant any waiver or consent under any Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Plan if it were in existence as of the date of this Agreement except for (1) amendments to Plans made in the ordinary course of business consistent with past practice that do not materially increase the expense of maintaining such plan and (2) establishing or adopting Plans in the ordinary course of business consistent with past practice in connection with the Company’s regular annual enrollment program; (D) grant any equity or equity-based awards; (E) hire, or terminate the employment of, any Company Employee, other than for cause, except, in each case, for individuals who have a total annual cash compensation target of less than $275,000 in the ordinary course of business consistent with past practice; (F) take any action to accelerate the vesting or time of payment of any compensation or benefit under any Plan or awards made thereunder; (G) loan or advance any money or other property to any present or former director, officer or employee of the Company or its Subsidiaries or (H) increase the funding obligation or contribution rate of any Plan subject to Title IV of ERISA; (xiii) announce, implement or effect any reduction in force, layoff or other program resulting in the termination of employees, in each case, that would trigger the WARN Act; (xiv) make any material investment either by purchase changes in its methods, practices or policies of stock financial accounting, except as may be required under Law, rule, regulation or securitiesU.S. GAAP, contributions in each case following consultation with the Company’s independent public accountants (with the Company to capital, property transfers, or purchase use reasonable best efforts to notify Parent of any property such actions promptly thereafter(which notification may be provided by email or assets telephonically to representatives of any other PersonParent)); (xv) take (A) make or change any action to exempt material Tax election, (B) file any Third Party amended Tax Returns, (C) settle or compromise any material Tax liability of the Company or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents Subsidiaries, (D) agree to an extension or terminatewaiver of the statute of limitations with respect to the assessment or determination of Taxes of the Company or any of its Subsidiaries, amend (E) enter into any closing agreement with respect to any material Tax or waive surrender any provisions right to claim a material Tax refund, (F) incur any material liability for Taxes outside the ordinary course of business, (G) make any confidentiality material changes in its methods, practices or standstill agreements in place with any Third Partiespolicies of Tax accounting; (xvi) make any material change fail to use its reasonable best efforts to maintain in full force and effect the existing insurance policies of the Company and its Tax methodsSubsidiaries or to replace such insurance policies with comparable insurance policies covering the Company, principles or electionsits Subsidiaries and their respective properties, assets and businesses; (xvii) file fail to use its reasonable best efforts to maintain in full force and effect any Money Transmitter License required to continue to operate its business as currently operated; (xviii) except for any changes made to comply with the Deferred Prosecution Agreement or amend similar changes intended to enhance the Company’s compliance procedures in the ordinary course of business, (A) make any Tax Return, changes to the operation or protection of IT Assets related to compliance with Anti-Money Laundering Laws or regulations administered by OFAC or (B) make any material changes in the operation or change protection of any Tax election, or settle or compromise any Tax liability, other than as required by Lawmaterial IT Assets; or (xviiixix) propose, agree to taketo, or make any commitment to to, take any of the actions prohibited by this Section 5.1(b5.1(a). (cb) Except as set forth Nothing contained in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts is intended to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of give Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of their equity interests or any other securities thereof or any rightsthis Agreement, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in complete control and supervision over its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in and its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d)Subsidiaries’ respective operations.

Conduct of Business Prior to the Effective Time. From and after the date hereof, prior to the Effective Time, except as expressly contemplated by this Agreement, TWG, Parent and its Subsidiaries shall each carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, and shall use reasonable efforts to keep available the services of its current employees and preserve its relationships with suppliers and others having business dealings with TWG, Parent or Parent's Subsidiaries, as the case may be. Without limiting the generality of the foregoing, and except as expressly contemplated by this Agreement, prior to the Effective Time, neither TWG, Parent nor Parent's Subsidiaries shall: (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, the Company Parties shall, and shall cause the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationshipsdeclare, set aside, or pay any dividends on, or make any other distributions in respect of, any of its capital stock (excluding intercompany dividends), (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interestsits capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock, or repurchase(iii) purchase, redeem or otherwise acquireacquire any shares of its capital stock; (b) issue, directly deliver, sell, pledge or indirectly, otherwise encumber any shares of their equity interests its capital stock or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securitiesshares of its capital stock; (iiic) grant any optionsamend its Articles/Certificate of Incorporation, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests Bylaws or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entitycomparable organizational documents; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (xd) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person corporation, partnership, limited liability company, joint venture, association or other business organization or division thereof; (e) subject to a Lien or sell, lease or otherwise acquire dispose of any of its properties or agree assets, except in the ordinary course of business; (f) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of another Person, or issue or sell any debt securities, guarantee any debt securities of another Person, or enter into any "keep well" or other agreement to acquire maintain any assets which are materialfinancial condition of another Person, except, in any such case, for borrowings or other transactions not in excess of $25,000 (whether individually or in the aggregate), to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into incurred in the ordinary course of business consistent with past practice; business, or (xivii) make any material investment either by purchase of stock loans, advances or securities, capital contributions to capital, property transfersto, or purchase of any property or assets of investments in, any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liabilitymaterial claim or litigation (other than, other than as required by Law; orin the case of Parent, in respect of any payments made or services provided to University Netcasting, Inc.); (xviiig) proposedeclare, agree to takepay, or make any enter into a commitment to take pay, any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letterbonus or other additional salary, compensation, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall benefit to any employee not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and of business; (h) release, compromise, waive or cancel any debts to or claims by it, or waive any rights, in compliance with all applicable Laws, (b) use reasonable best efforts to each case having a value in excess of $2,500; (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect change its accounting methods or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby.practices; (dj) During the period from voluntarily cease to transact business with any customer that, as of the date of this Agreement and continuing until such cessation, represents more than 5% of its annual gross revenues; (k) amend or terminate any oral or written contract, agreement or license related to the Effective Time TWG Business or the earlier termination of this AgreementParent's Business, to which it is a party or by which it is bound, except (1) as set forth in Section 5.1(d) the ordinary course of the Parent Disclosure Letterbusiness, (2) or except as expressly contemplated by this Agreement; (l) fail to satisfy, or (3) with the prior written consent within 180 days of the Companydue date, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries tomaterial debts, directly obligations or indirectly: (i) cause liabilities related to the TWG Business or permit any amendmentParent's Business, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects as the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interestscase may be, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than its assets as the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or electionssame become due and owing; or (vim) proposeauthorize, commit or agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d)foregoing actions.

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, the Company Parties shallshall carry on its business in, and shall cause the Company Subsidiaries tonot enter into any material transaction other than in accordance with, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Lawsand, (b) to the extent consistent therewith, use its reasonable best efforts to preserve intact its current business organization, keep available the services of its current employees and preserve its relationships with Persons having dealings with it. In connection therewith, the Company shall not (i) maintain and preserve intact their business organizations and business relationshipstransfer or cause to be transferred any employee or agent of the Company to any Affiliates of the Company or any Stockholder, (ii) retain permit any Affiliate of the services Company or of their officers and employeesany Stockholder to offer employment to any such employee or agent, and or (iii) maintain their rights and Permitsotherwise attempt to persuade any such employee or agent to terminate his or her relationship with the Company other than for reasons that are in the best interests of the Company. Without limiting the generality of the foregoing, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted contemplated by this Agreement, or (3) with the Company shall not, without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit : 7.6.1 take any action of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Documentnature described in Section 5.16; (ii) make7.6.2 grant any additional options, declareissue, set aside or pay any dividends or distributions (whether in the form deliver, sell, pledge, dispose of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly encumber any shares of its capital stock or indirectly, any of their equity interests or any other securities thereof or (including any rights, warrants or options to acquire any such equity interests shares of its capital stock or other securities; (iii) grant ); or issue any optionscertificate evidencing any shares of Company Common Stock in replacement for any certificate that has been lost, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests destroyed or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries)stolen, except in upon receipt from the ordinary course issuee thereof of business consistent with past practice if such indebtedness would not result in total indebtedness indemnification of the Company in form and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Capsubstance satisfactory to Parent; (1) 7.6.3 amend its Certificate of Incorporation or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or businessBylaws; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) 7.6.4 acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets ofof or equity in, or by any other manner, any business or any Person or otherwise acquire division thereof; 7.6.5 make or agree to acquire incur any assets which are materialnew capital expenditure or expenditures which, individually or individually, is in excess of $10,000 or, in the aggregate, to the Company or the Company Entities (taken as a whole)are in excess of $50,000; 7.6.6 pay, discharge or satisfy (xii) implement any claim by or adopt liability or obligation owing to, any material change in its Tax accounting present, former or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect purported holder of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent securities of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof claim, liability or any rights, warrants or options to acquire any such equity interests or other securities, obligation other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement payment, discharge or adopt any material change satisfaction thereof in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).ordinary course

Conduct of Business Prior to the Effective Time. Except (ai) Except as expressly contemplated or permitted by this Agreement Agreement, (ii) as described in Schedule 6.2 of the Company Disclosure Schedules, or with (iii) to the prior written extent that Parent shall otherwise consent of Parent, which in writing (such consent shall or declination to consent not to be unreasonably withheld, delayed or conditionedwithheld), during the period from the date hereof to the earlier of the Effective Time and the termination of this Agreement and continuing until the Effective Time or the earlier termination of this Agreementin accordance with its terms, the Company Parties shall, shall and shall cause the Company each of its Subsidiaries to, (a) to conduct their business its operations in the ordinary course of business consistent with past practice practices and in compliance with all applicable Laws, (b) use commercially reasonable best efforts to (i) maintain preserve intact its current business organizations, keep available the service of its current officers and employees and preserve intact their business organizations and business relationshipsits relationships with customers, (ii) retain the services of their officers and suppliers, distributors, lessors, creditors, employees, contractors and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay others having business dealings with it. Without limiting the ability generality of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under foregoing, except as otherwise expressly provided in this Agreement and except as described in Schedule 6.2 of the Company Disclosure Schedules, between the date hereof and the Effective Time, the Company shall not and shall cause its Subsidiaries not to, without the prior written consent (such consent or declination to consummate the transactions contemplated hereby.consent not to be unreasonably delayed or withheld) of Parent: (a) authorize or propose any amendments to its certificate of incorporation or bylaws (or other similar governing instrument); (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends on or make any other distributions (whether in the form of cash, equity stock or property) in respect of any of their equity interests its capital stock (or other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letterownership interests), or split, combine or reclassify any of their equity its capital stock (or other ownership interests) or declare any direct or indirect redemption, retirement, purchase or repurchase, redeem other acquisition by the Company or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any its Subsidiaries of such equity interests capital (or other securitiesownership interests); (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (ivc) issue, deliver sell, grant, pledge, dispose of, encumber or sell otherwise subject to any Liens, or authorize or propose the such issuance, delivery sale, grant, pledge, disposition, encumbrance or sale of, or purchase or propose the purchase ofsubject to such Lien, any equity interests, Voting Debt shares of its capital stock (or other securities, ownership interests) or securities convertible into equity interests, Voting Debt shares of its capital stock (or other securitiesinterests), or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, issue any such equity interests, Voting Debt, convertible securities shares (or other ownership interests) or other convertible securities, other than the issuance of shares of Company Common Stock issuable upon exercise of Company Options or Company Warrants; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (xd) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial an equity interest in or portion of the assets of, or by any other manner, any business or any Person corporation, partnership or otherwise acquire other business organization or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole)division; (xie) implement other than Indebtedness existing on the date hereof, (1) incur or adopt assume any material change Indebtedness in its Tax accounting excess of $500,000, other than in the ordinary course of business consistent with past practices; or financial accounting methods(2) assume, principles Guarantee or otherwise become liable or responsible for (directly, contingently or otherwise) the obligations of any other Person in amounts in excess of $250,000, other than in the ordinary course of business consistent with past practices; (1) except in the ordinary course of business consistent with past practice with respect to any employee (other than any officer or director), except or as may be required by applicable Lawlaw enter into, GAAPadopt, Regulation S-X amend or terminate any employment agreement or any bonus payments with any employee, officer or director of the Company, or (2) except as required by applicable law, enter into, adopt, amend or terminate any pension, retirement, health, life, or disability insurance, severance, profit sharing, bonus compensation, termination, stock option, stock appreciation right, restricted stock, employee benefit plan, agreement, trust, fund or other Regulation promulgated by arrangement for the SECbenefit or welfare of any director, officer or employee in any manner; (xiii) except as permitted by clause (i)(iii) below, purchase, acquire or lease any material assets other than in the ordinary course of business consistent with past practice; or (ii) sell, lease, license, transfer or otherwise dispose of any material Properties other than the sale of inventory or obsolete equipment in the ordinary course of business consistent with past practice. (h) (i) make any change in the accounting methods or practices it follows, (ii) revalue in any Property, including writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practice or (iii) make or change any Tax election or change any of the accounting or Tax principles, practices or methods used by it; (i) (i) enter into any new line contract or agreement that would be material to the Company and its Subsidiaries, taken as a whole, other than contracts or agreements in the ordinary course of business consistent with past practice; (ii) amend, modify or change in waive any material respect right under any Material Contract other than in the ordinary course; or (iii) make or authorize any capital expenditure in excess of $500,000 per expenditure or $5,000,000 in the aggregate, other than in accordance with the Company’s fiscal year 2007 capital expenditures budget as approved by the Company’s board, which has been provided to the Parent; or (j) grant or agree to make any severance, termination pay or deferred compensation (or amendment to any existing arrangement) to or increase in the compensation, bonus or other benefit payable or to become payable by the Company or any of its business as currently conductedSubsidiaries to their directors, officers or employees, except increases required by any agreement existing on the date hereof; (xiiik) transfer ownershipmake any loan, advance or grant any license capital contribution to or other rights, to investment in any Person of or in respect of any material Intellectual Property, other than grants (i) loans, advances or capital contributions to or investments in its wholly owned Subsidiaries in the ordinary course of non-exclusive licenses pursuant to license agreements entered into business consistent with past practice and (ii) reimbursement of employee business expenses in the ordinary course of business consistent with past practice; (xivi) make cancel or compromise any material investment either by purchase Indebtedness or claim (other than compromises of stock accounts receivable in the ordinary course of business consistent with past practice) in excess of $500,000, (ii) waive or securities, contributions to capital, property transfersrelease any right of substantial value, or purchase (iii) institute, settle or agreed to settle any action, suit, proceeding, claim, arbitration or investigation other than such actions that are not material to the Company or any Subsidiary and that will not result in any obligation of the Company or any property Subsidiary on or assets of any other Personafter the Closing Date; (xvm) take any action agree, commit to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax electiondo, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to otherwise take any of the actions prohibited by this Section 5.1(bdescribed in Sections 6.2(a) through 6.2(l). (c) Except as set forth . Other than the right to consent or withhold consent with respect to the foregoing matters, nothing contained herein shall give Parent any right to manage, control, direct or be involved in Section 5.1(c) the management of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent business of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement Company and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in prior to the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated herebyClosing. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of ParentThe Company agrees that, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from and after the date of this Agreement hereof and continuing until prior to the Effective Time or the date, if any, on which this Agreement is earlier termination of terminated pursuant to Section 7.1 (the "Termination Date"), and except as may be agreed in writing by DCNA, which agreement shall not be unreasonably withheld or delayed, as may be expressly permitted pursuant to this Agreement, the Company Parties Company: (i) shall, and shall cause the Company each of its Subsidiaries to, (a) conduct its operations in all material respects according to their ordinary course of business in substantially the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, same manner as heretofore conducted; (ii) retain shall use its reasonable best efforts, and cause each of its Subsidiaries to use its reasonable best efforts, to preserve intact its business organization and goodwill, keep available the services of their its current officers and employees, other key employees and preserve its current relationships with those Persons having significant business dealings with the Company and its Subsidiaries; (iii) maintain their rights shall notify DCNA of any emergency or other substantial change in the normal course of its or its Subsidiaries' respective businesses or in the operation of its or its Subsidiaries' respective properties and Permits, and of any complaints of or hearings (cor written communications indicating that the same are threatened) take no action that would reasonably be expected to adversely affect or delay of which the ability of the parties hereto to (i) obtain any necessary approvals of Company has knowledge before any Governmental Entity required for if such emergency, change, complaint, investigation or hearing would have a Material Adverse Effect on the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby.Company; (biv) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of its Subsidiaries that is not incorporated or organized in the Company Subsidiaries United States or not wholly owned to, directly or indirectly: (i) cause or permit any amendmentrepatriate funds, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside authorize or pay any dividends on or distributions (whether in the form make any distribution with respect to its outstanding shares of cash, equity or property) in respect of any of their equity interests capital stock (other than dividends or distributions by any wholly owned Subsidiary Subsidiaries of the Company); (v) shall not, and shall not permit any of its Subsidiaries to establish, enter into or amend any severance plan, agreement or arrangement or any Company to Plan or materially increase the Company compensation payable or to another wholly owned Subsidiary of become payable or the Company benefits provided to its officers or employees, except as may be required by applicable law or a contract in existence on the date hereof, and other than the payment of the Series A Quarterly Distribution (as defined except for increases for nonofficer employees in the Company Partnership Agreement) in cash in lieu normal course of “pay-in-kind” distributions on the Preferred Units business consistent with past practice and except as set forth in Section 5.1(b)(ii5.1(a)(v) of the Company Disclosure LetterSchedule; (vi) shall not, and shall not permit any of its Subsidiaries to, authorize or announce an intention to authorize, or enter into an agreement with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of any assets or securities, or any disposition of any assets or securities, except in an amount that is not material to the Company and its Subsidiaries taken as a whole and except for the disposition of the Company's 50% ownership interest in ▇▇▇▇▇▇▇▇ Marine Exhaust, Inc.; (vii) shall not, and shall not permit any of its Subsidiaries to, propose or adopt any amendments to its certificate of incorporation or by- laws (or other similar organizational documents); (viii) shall not, and shall not permit any of its Subsidiar ies to, issue or authorize the issuance of, or agree to issue or sell any shares of capital stock of any class (whether through the issuance or granting of options, warrants, commitments, convertible securities, subscriptions, rights to purchase or otherwise) except for the disposition of the Company's 50% ownership interest in ▇▇▇▇▇▇▇▇ Marine Exhaust, Inc., or take any action to cause to be exercisable any unexercisable option under any existing option plan, except for the issuance of shares of Company Common Stock pursuant to options and grants outstanding as of the date of this Agreement which were issued or made, as the case may be, pursuant to the Company's 1993 Stock Incentive Plan and 1998 Stock Incentive Plan and each of which is set forth in Section 3.2(a) of the Company Disclosure Schedule; (ix) shall not, and shall not permit any of its Subsidiaries to, reclassify, combine, split, combine purchase or reclassify redeem any shares of their equity interests, its capital stock or repurchase, purchase or redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or shares (other securitiesthan as contemplated by the Company Plans); (iiix) grant any optionsshall not, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of and shall not permit any of its material properties Subsidiaries to, (A) incur, assume or assets, or cancel, release or assign prepay any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness other liabilities for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of issue any Third Party (debt securities other than any Company incurrences and repayments of indebtedness under the Company's or its Subsidiaries), except ' credit facilities in existence on the date of this Agreement in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person (other than wholly owned Subsidiaries), except for guarantees by Subsidiaries of the Company and of indebtedness permitted under the Company Subsidiaries preceding clause (on a consolidated basis) as of the Closing Date exceeding the Target Debt CapA); (1xi) amend shall not, and shall not permit any of its Subsidiaries to (or otherwise modifyconsent to any proposal by any Person in which the Company has an investment to), except make or forgive any loans, advances or capital contributions to, or investments in, any other Person other than the Company or any wholly- owned Subsidiary of the Company (including any intercompany loans, advances or capital contributions to, or investments in, any affiliate) other than advances to employees in the ordinary course of businessbusiness in accordance with the Company's or its Subsidiaries' established policies; (xii) shall not, or violateand shall not permit any of its Subsidiaries to, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) enter into any restriction on the ability material lease or license or otherwise subject to any material Lien any of a Company Entity to conduct its business as it is presently being conductedproperties or assets (including securitizations), or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually practice; (B) modify or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase amend in any manner the compensation material respect, or benefits of terminate, any of the current or former directors or officers of the Company Entities its material contracts (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses except in the ordinary course of business); (C) waive, (iii) become a party to, establish, amend, commence participation in, make release or assign any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which rights that are material, individually or in the aggregate, material to the Company or the Company Entities (and its Subsidiaries taken as a whole); ; or (xiD) implement permit any insurance policy naming it as a beneficiary or adopt any material change a loss payable payee to lapse, be cancelled or expire unless a new policy with substantially identical coverage is in its Tax accounting effect as of the date of lapse, cancellation or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conductedexpiration; (xiii) transfer ownershipshall not, and shall not permit any of its Subsidiaries to change any of the financial accounting methods used by it unless required by generally accepted accounting principles of the applicable country or change in applicable law; (xiv) shall not, and shall not permit any of its Subsidiaries to, file with, or grant submit to, any license Governmental Entity (including the SEC) any registration statement, prospectus or other rightssimilar document, or any amendment or supplement thereto, relating to any Person of or in respect the issuance of any material Intellectual Propertysecurities of the Company or any Subsidiary of the Company, other than grants a registration statement of non-exclusive licenses pursuant to license agreements entered into the Company on Form S-8 (including any final prospectus thereon) or any amendment or supplement thereto, filed with the SEC in connection with the Company's 1993 Stock Incentive Plan and 1998 Stock Incentive Plan in each case, in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shallnot, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly agree, in writing or indirectly: (i) cause or permit any amendmentotherwise, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the foregoing actions prohibited or take any action which would (y) make any representation or warranty in Article III hereof untrue or incorrect in any material respect, or (z) result in any of the conditions to the Offer set forth in Annex A hereto or any of the conditions to the Merger set forth in Article VI hereof not being satisfied; (b) DCNA agrees that, from and after the date hereof and prior to the earlier of the Effective Time and the Termination Date, and except as may be agreed in writing by the Company or as may be expressly permitted pursuant to this Section 5.1(d)Agreement, DCNA shall not, and shall not permit any of its Subsidiaries to (i) agree, in writing or otherwise, to take any action which would result in any of the conditions to the Offer set forth in Annex A hereto or any of the conditions to the Merger set forth in Article VI hereof not being satisfied or (ii) delay the consummation of the Offer.

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement Agreement, the Company shall operate and carry on its business only in the ordinary course consistent with past business practices and substantially as currently operated. Consistent with the foregoing, the Company shall use commercially reasonable efforts consistent with past practice to keep and maintain its assets and properties in good operating condition and repair (subject to normal wear and tear) and to preserve, maintain the value of, renew, extend and keep in full force and effect all Intellectual Property of the Company, and to maintain its business organization intact and to preserve the goodwill of the material Company Suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Company (except, in each case, with the express prior written approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed). (b) Except as expressly required by this Agreement, set forth on Schedule 8.6, or with the express prior written consent approval of Parent, which consent shall not be unreasonably withheld, delayed conditioned or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreementdelayed, the Company Parties shall, and shall cause the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (iiA) make, declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions (whether in the form of cash, equity or property) in respect of of, any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter)its capital stock, or otherwise make any payments to its Stockholders in their capacity as such, (B) split, combine or reclassify any of their equity interestsits capital stock or issue, sell or repurchaseauthorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock (other than any issuances of its securities upon the exercise of any Company Stock Options or Company Warrants outstanding on the date of this Agreement to purchase such securities or upon the conversion of any outstanding convertible securities that are convertible into such securities) or (C) purchase, redeem or otherwise acquire, directly or indirectly, acquire any shares of their equity interests capital stock of the Company or any other securities thereof or thereof; (ii) make any rights, warrants or options to acquire any such equity interests or other securitieschange in its line of business; (iii) grant any optionsamend the Company Charter, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests Company Bylaws or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company EntityStockholders Agreement; (iv) issue, deliver grant, sell, redeem, repurchase or sell encumber any Shares or authorize other securities of the Company; issue, grant, sell, redeem, repurchase or propose encumber any security, option, warrant, put, call, subscription or other right of any kind, fixed or contingent, that directly or indirectly calls for the acquisition, issuance, delivery or sale ofsale, or purchase or propose the purchase of, any equity interests, Voting Debt pledge or other securities, securities convertible into equity interests, Voting Debt disposition of any Shares or other securities, securities of the Company or subscriptions, rights, warrants or options to acquire, or make any other agreements or commitments changes in the equity capital structure of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securitiesthe Company; (v) sellmake any capital expenditure or enter into any Contract or commitment therefor, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except capital expenditures or commitments for capital expenditures in the ordinary course of business consistent with past practice if such indebtedness would business practices in an aggregate amount not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Capto exceed $[*]; (1vi) amend or otherwise modify, except other than in the ordinary course of businessbusiness consistent with the Company’s past business practices, (A) enter into any Contract or other instrument which would have been required to be set forth on Schedule 5.9(a), Schedule 5.10, 5.11(c), 5.14 or 5.17(a) if in effect on the date hereof, (B) enter into any Contract which requires the giving of notice to, or violate, in each case in any material respect, the terms consent or approval of, any Material Contractthird party to consummate the transactions contemplated by this Agreement, (C) make any modification to any existing Company Agreement or to any Governmental Permit or (D) waive, release or assign any rights or claims under, fail to take a required action under, or commit any default under, any Company Agreement; (2vii) create, renew or amend enter into any Contract orfor the purchase, except lease (as may be required by applicable Law, lessee) or other binding obligation occupancy of real property or exercise any option to purchase real property or any option to extend a Company Entity containing (A) any restriction lease listed on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or businessSchedule 5.9(a); (viii) make sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any capital expendituresEncumbrance on, (any of the assets or properties of the Company, other than drydocking capital expenditures) capital additions inventory and minor amounts of personal property sold or capital improvements except otherwise disposed of for fair value in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregatebusiness practices and other than Permitted Encumbrances; (ix) except as required cancel any debts owed to or claims held by existing written Contracts or the Company Benefit Plans existing as of (including the date hereof, (i) increase in any manner the compensation or benefits settlement of any of the current claims or former directors or officers of the Company Entities (together, the “Covered Employees”), (iilitigation) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business consistent with past business practices; (x) create, incur or assume, or agree to create, incur or assume, any Indebtedness or enter into, as lessee, any capitalized lease obligation (as defined in connection with reimbursement Statement of expenses Financial Accounting Standards No. 13); (xi) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected, other than in the ordinary course of business)business consistent with past business practices; (xii) delay or accelerate payment of any account payable or other liability beyond or in advance of its due date, or the date when such liability would have been paid or the dates when the same would have been collected, other than in the ordinary course of business consistent with past business practices; (iiixiii) become a party toallow the levels of raw materials, establishsupplies or work in process of the Company to vary in any material respect from the levels customarily maintained by the Company unless the maintenance of such levels such materials, amendsupplies or work in process are not necessary for the Company to conduct its business substantially as currently conducted; (xiv) make, commence participation inor agree to make, make any adjustment to, terminate payment of cash or commit itself distribution of assets to the adoption Stockholders; (xv) alter (other than as required by existing Contracts listed on Schedule 5.17(k)) the compensation payable to any officer, manager, non-employee member of the board of directors or consultant of the Company, or any equityprofit-based compensation plansharing, compensation (including any employee co-investment fund)bonus, severanceincentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other benefits made available to officers, managers, non-employee members of the board of directors or consultants of the Company, or enter into any new Contract with any officer, manager, non-employee member of the board of directors or consultant of the Company with respect to such compensation or benefits; (xvi) with respect to employees other than officers, managers or consultants, (A) alter the compensation of any employees of the Company, except as required by existing Contracts listed on Schedule 5.17(k), (B) alter any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare benefit or other employee benefit planbenefits made available to such employees of the Company, except as required by existing Contracts listed on Schedule 5.17(k), or agreement or employment agreement (C) enter into a new Contract with or for any employee of the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based Company with respect to such compensation or other long-term incentive compensation under benefits; (xvii) make any change in the accounting principles and practices used by the Company Benefit Plansapplied in the preparation of the financial statements contained on Schedule 5.4, except as required by U.S. GAAP; (vxviii) prepare or file any Tax Return inconsistent with past business practices or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods, except as otherwise required by Requirements of Law; (xix) fail to (A) hire employees in the position of Vice President maintain any Owned Intellectual Property or aboveany Licensed Intellectual Property, or (B) terminate enforce any Licensed Intellectual Property for which the employment of any employee in Company has the position of Vice President or above (other than due contractual right to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (enforce or any term Owned Intellectual Property; (xx) (A) make any submissions to, or correspond with, the FDA relating to the conduct or design of similar import) in clinical trials sponsored or proposed by the Company or involving any employment agreementProducts, including those related to new trials or changes or amendments to protocols or clinical trial documents for an existing trial, and clinical holds or regarding any other matter, or (viiB) adoptmake any submissions to, enter into or amend correspond with, any collective bargaining agreement Institutional Review Board regarding a clinical trial sponsored or other arrangement relating proposed by the Company or involving any Products, including those related to a labor union new trials or organized laborchanges or amendments to the protocol or clinical trial documents for an existing trial, and clinical holds; (xxxi) acquire or agree to acquire (A) by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by purchasing all or a substantial portion of the capital stock of, or by any other manner, any business or any other Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownershipdivision thereof, or grant (B) any license or other rights, to any Person of or in respect of any material Intellectual Propertyassets, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practicebusiness, that are material to the Company; (xivxxii) make any material investment either by purchase of stock or securitiespay, contributions to capitaldischarge, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise satisfy any Tax liabilityclaims, liabilities or obligations, other than as required by Lawin the ordinary course of business; or (xviiixxiii) propose, agree to take, enter into any Contract or make any commitment to take any of the actions action prohibited by this Section 5.1(b8.6(b). (c) Except Subject to Section 2.3 and to the deduction of all applicable withholding taxes pursuant to Section 3.7, prior to the Closing Date, the Company shall pay, or cause to be paid, the Aggregate Employee Bonus Amount (if any) of up to $[*] by wire transfer of immediately available funds to the Company employees set forth on Schedule 8.6(c) and in the corresponding amounts calculated as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(don Schedule 8.6(c).

Conduct of Business Prior to the Effective Time. (a) Except Section 8.1 Conduct of Business by the Company. Following the date ---------------------------------- hereof and prior to the Effective Time, except as expressly otherwise contemplated or permitted by this Agreement or with unless Sub shall otherwise consent in writing: (a) subject to the prior written consent of Parentlimitations contained in or transactions contemplated by (including, which consent shall but not be unreasonably withheldlimited to, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of Taurus Disposition) this Agreement, the Company Parties shall, and shall cause the Company its Subsidiaries to, (a) conduct carry on their business respective operations in the usual and ordinary course consistent with past practice practice, and shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, to preserve substantially intact its present business organization, keep available the services of its present officers and employees, maintain and keep its material assets in compliance as good repair and condition as of the date hereof, ordinary wear and tear and damage due to casualty excepted, and preserve its relationships with all applicable Lawscustomers, suppliers and others having business dealings with it to the end that its goodwill and on-going businesses shall be materially unimpaired at the Effective Time; (b) use reasonable best efforts to the Company shall not, nor shall it propose to, except as required by this Agreement, (i) maintain and preserve intact their business organizations and business relationshipssell or pledge or agree to sell or pledge any capital stock owned by it in any of its Subsidiaries, (ii) retain the services amend its Certificate of their officers and employeesIncorporation or By-laws, and (iii) maintain their rights and Permitssplit, and (c) take no action that would reasonably be expected to adversely affect combine or delay reclassify its outstanding capital stock or issue or authorize or propose the ability issuance of any other securities in respect of, in lieu of or in substitution for shares of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreementcapital stock, or (3) with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (ii) make, declare, set aside or pay any dividends dividend or distributions (whether other distribution payable in the form of cash, equity stock or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split(iv) directly or indirectly redeem, combine or reclassify any of their equity interests, or repurchase, redeem purchase or otherwise acquireacquire or agree to redeem, directly purchase or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to otherwise acquire any such equity interests or other securitiesshares of its capital stock; (iiic) grant the Company shall not, nor shall it permit any optionsof its Subsidiaries to, equity interest appreciation rights(i) except as required or contemplated by this Agreement, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize agree to issue, deliver or propose the issuance, delivery or sale sell any additional shares of, or purchase stock appreciation rights or propose the purchase rights of any kind to acquire any shares of, its capital stock of any equity interestsclass, any Company Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securitiesDebt, or subscriptionsany option, rights, rights or warrants or options to acquire, or securities convertible into, shares of capital stock, other than issuances of Company Common Stock pursuant to the exercise of options granted pursuant to the Stock Option Plans or Outstanding Warrants, (ii) amend in any respect existing agreements evidencing the options granted pursuant to the Stock Option Plans or commitments Outstanding Warrants (including, without limitation, the exercise or strike prices thereof) or the Stock Option Plan pursuant to which such options were granted, except to permit the acceleration of the vesting or exercisability of the options granted pursuant to the Stock Option Plans and Outstanding Warrants in connection with the settlement thereof in accordance with Section 3.6, (iii) acquire or lease or agree to acquire or lease any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties capital asset or assets, or cancelmake any other capital expenditures, release which exceed the Company's capital expenditure budgets for the fourth quarter of 1995 and the first quarter of 1996 set forth in Schedule 8.1(c) of the Company Disclosure Schedule, in the aggregate for all such assets or assign other capital expenditures in both quarters, by $2.0 million or more (including in such calculation the proceeds of any material amount sale/leaseback transactions), (iv) dispose or agree to dispose of indebtedness to any Person capital assets or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other assets other than any Company Subsidiariesin the ordinary course, with a value in the aggregate in excess of $2.0 million, (v) (A) create, incur, assume or permit additional material indebtedness (including obligations in respect of capital leases), except other than periodic drawdowns under the Company's credit facilities existing as of the date hereof, provided that such drawdowns are in the ordinary course of business consistent with past practice if practice, and provided further that the amount available under such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) facilities as of the Closing Date exceeding the Target Debt Cap; date hereof is not increased, (1B) amend assume, guarantee, endorse or otherwise modify, except in become liable or responsible for the ordinary course obligations of businessany other person (other than a Subsidiary of the Company, or violateas to a Subsidiary, another Subsidiary of the Company) in an amount in excess of $10,000, (excluding suspense account obligations assumed in connection with acquisitions by the Company whereby the Company also receives the funds held in suspense or an adjustment to the purchase price is made in an equal amount), (C) encumber or grant a security interest in any Material Company Asset other than for the Company's credit facilities existing as of the date hereof, or (D) make any loans or advances to any other person (excluding intercompany transactions), enter into any agreement or instrument relating to the borrowing of money or the extension of credit or enter into any other material transaction, other than in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause)practice, (vi) take any action which could reasonably be expected acquire or agree to give rise to acquire oil or gas properties or other assets of a claim type not covered by Schedule 8.1(c) of resignation for “good reason” (or any term of similar import) in any employment agreementthe Company Disclosure Schedule, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing the assets of or a substantial portion of the assets ofequity interest in, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are materialcorporation, individually or in the aggregatepartnership, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X association or other Regulation promulgated by the SEC; business organization or division thereof, for an aggregate purchase price in excess of $5.0 million, (xiivii) enter into any new line of business or change in renew any material respect its business as currently conducted; (xiii) transfer ownershipagreements, or grant any license contracts or other rightscommitments that are not expected to be fully performed within thirty days after the Effective Time excluding oil and gas leases, to any Person of farmout agreements, gas sales or in respect of any material Intellectual Propertypurchase contracts, other than grants of non-exclusive licenses pursuant to license joint operating agreements, unit operating agreements and unit agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfersbusiness, or purchase of any property or assets of any other Person; (xvviii) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminateadopt, enter into, amend or waive terminate any provisions of any confidentiality contract, agreement, commitment or standstill agreements in place arrangement with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree respect to take, or make any commitment to take any of the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby.foregoing; (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent Company shall not, nor shall it permit any of its Subsidiaries to, directly except as required to comply with applicable law and except as provided in Section 9.3 hereof and other than acceleration of vesting permitted by this Agreement, (i) adopt, enter into, terminate or indirectly:amend any bonus, profit sharing, compensation, severance, termination, stock option, pension, retirement, deferred compensation, employment or other Plan, agreement, trust, fund or other arrangement for the benefit or welfare of any current or former director, officer or employee (other than the adoption of any special compensation for the members of the Special Committee), (ii) increase in any manner the compensation or fringe benefits of any director (other than the adoption of any special compensation for the members of the Special Committee), executive officer or employee (provided, however, that the Company shall be permitted to award normal salary increases to employees (other than executive officers) of the Company in the ordinary course of business that are consistent with past practice (including, without limitation, in connection with any promotion of such employee) and that, in the aggregate, do not result in a material increase in compensation expense to the Company and its Subsidiaries relative to the level in effect prior to such increase), unless consented to by Sub, which consent shall not be unreasonably withheld, (iii) pay any benefit not provided under any existing plan or arrangement, except for payments set forth in Schedule 8.1(d) of the Company Disclosure Schedule, (iv) grant any awards under the Stock Option Plan or any other bonus, incentive, performance or other compensation plan or arrangement or Plan (including, without limitation, the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Plans or agreements or awards made thereunder), (v) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Plan, other than in the ordinary course of business consistent with past practice, or (vi) adopt, enter into, amend or terminate any contract, agreement, commitment or arrangement to do any of the foregoing; (e) the Company shall not, nor shall it permit its Subsidiaries to, make any change in its accounting policies or procedures, except as required under GAAP; (f) the Company shall use its reasonable best efforts to refrain from taking, and shall use its reasonable best efforts to cause its Subsidiaries to refrain from taking, any action that would, or reasonably might be expected to, result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect as of the Effective Time, or in any of the conditions to the Merger set forth in Article X not being satisfied, or (unless such action is required by applicable law) that would adversely affect the ability of the Company to obtain any of the regulatory approvals required to consummate the Merger, as contemplated hereby; (g) the Company shall not settle or compromise any claim for dissenters' rights in respect of the Merger; (h) the Company shall maintain in full force and effect all of its policies of insurance in existence as of the date hereof or insurance comparable to the coverage afforded by such policies; and (i) cause the Company shall not enter into any natural gas or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants future or options trading or be a party to acquire any such equity interests price swaps, ▇▇▇▇▇▇, futures or other securitiessimilar instruments without first obtaining the consent of Sub, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may which consent shall not be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d)unreasonably withheld.

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from Between the date of this Agreement and continuing until the Effective Time Closing Date, or, if earlier, the date this Agreement is terminated pursuant to Section 14.1, except as set forth on Schedule 8.1(a) or the earlier termination of as otherwise contemplated by this Agreement, the Company Parties shall, and shall Seller will cause the Company Subsidiaries to, (a) Acquired Companies to use commercially reasonable efforts to conduct their business the Business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services Ordinary Course of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from Business. Between the date of this Agreement and continuing until the Effective Time or Closing Date, or, if earlier, the earlier termination of date this AgreementAgreement is terminated pursuant to Section 14.1, except (1) as set forth in Section 5.1(bon Schedule 8.1(a) of the Company Disclosure Letter, (2) or as expressly permitted otherwise contemplated by this Agreement, or (3) with Seller will cause the prior written Acquired Companies to use commercially reasonable efforts not to engage in, without the consent of Parent, Buyer (which consent shall will not be unreasonably withheld, delayed conditioned or conditioneddelayed), any transaction which, if engaged in since June 30, 2006, but on or before the date of this Agreement, would constitute a breach of the representations and warranties of Seller contained in Section 5.17(b). (b) Between the date of this Agreement and the Closing Date, or, if earlier, the Company Parties shall date this Agreement is terminated pursuant to Section 14.1, Seller will cause the Acquired Companies to use commercially reasonable efforts to maintain, consistent with past practices, relationships with suppliers and customers having business relations with the Acquired Companies (it being understood that such efforts will not include any requirement or obligation of Seller or any of its Affiliates (including the Acquired Companies) to pay any consideration or offer or grant any financial accommodation or other benefit). (c) Unless Seller obtains the consent of Buyer (which consent will not be unreasonably withheld, conditioned or delayed), between the date of this Agreement and the Closing Date, or, if earlier, the date this Agreement is terminated pursuant to Section 14.1, Seller will not, and shall will cause the Acquired Companies not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit make any amendmentmaterial Tax election for the Acquired Companies that would result in any increase in Tax liability for Buyer, modificationchange an annual accounting period, alteration or rescission of change an accounting method, file any Company Entity Charter Document; (ii) makeamended Tax Return, declareenter into any closing agreement, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities; (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person surrender any right to acquire any equity interest in any Company Entity; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments claim a refund of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Company or the Company Entities (taken as a whole); (xi) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other Person; (xv) take any action to exempt any Third Party or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Parties; (xvi) make any material change in its Tax methods, principles or elections; (xvii) file or amend any Tax Return, make or change any Tax election, Taxes or settle or compromise any Tax liability, other than as required by Law; or (xviii) propose, agree to take, liability that would create or make otherwise cause any commitment to take any material Tax liability of the actions prohibited by this Section 5.1(b)Acquired Companies that will be the responsibility of Buyer pursuant to Article XIII. (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, the Company Parties shall, shall operate and shall cause the Company Subsidiaries to, (a) conduct their carry on its business only in the ordinary course consistent and substantially as currently operated. Consistent with past practice the foregoing, the Company shall keep and maintain its assets and properties in compliance with all applicable Laws, (b) good operating condition and repair and shall use its reasonable best efforts consistent with good business practice to (i) maintain its business organization intact and to preserve intact their business organizations and business relationshipsthe goodwill of the suppliers, (ii) retain the services of their officers and contractors, licensors, licensees, employees, customers, distributors and others having business relations with the Company (iii) maintain their rights and Permitsexcept, and (c) take no action that would reasonably be expected in each case, with the express prior written approval of Parent). In connection therewith, the Company shall not attempt to adversely affect persuade any employee or delay the ability agent of the parties hereto Company to (i) obtain any necessary approvals of any Governmental Entity required for terminate such person’s relationship with the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated herebyCompany. (b) During the period from the date of Notwithstanding Section 7.6(a), except as expressly contemplated by this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with the express prior written consent approval of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (iiA) make, declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions (whether in the form of cash, equity or property) in respect of of, any of its capital stock, or otherwise make any payments to its Shareholders in their equity interests (capacity as such other than dividends or distributions by any wholly owned Subsidiary of the Company with respect to the Company or to another wholly owned Subsidiary Preferred Stock in an aggregate amount of the Company and other no more than the payment of the Series A Quarterly Distribution $350,000, (as defined in the Company Partnership AgreementB) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter), or split, combine or reclassify any of their equity interestsits capital stock or issue, sell or repurchaseauthorize the issuance of any other securities in respect of, in lieu of or in substitution for any Shares (other than any issuances of its securities upon the conversion of any outstanding Company Preferred Stock) or (C) purchase, redeem or otherwise acquire, directly or indirectly, acquire any of their equity interests Shares or any other securities thereof of the Company; (ii) except as set forth in clause (i) above, issue, deliver, sell, pledge, dispose of or otherwise encumber any Shares or other securities (including any rights, warrants or options to acquire any such equity interests Shares or other securities); (iii) grant make any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value of equity interests material change in its business or other equity-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entityoperations; (iv) issue, deliver amend the Company Charter or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securitiesCompany’s Bylaws; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets ofof or equity in, or by any other manner, any business or any Person corporation, partnership, limited liability company, association or otherwise acquire other business organization or agree to acquire division thereof; (vi) alter through merger, liquidation, reorganization, restructuring or in any assets which are materialother fashion its corporate structure; (vii) make or incur any capital expenditure or expenditures which, individually or individually, is in excess of $10,000 or, in the aggregate, are in excess of $20,000; (viii) enter into or modify in any material respect any contract, agreement, undertaking, obligation or commitment that would have been required to be set forth on Schedule 5.14 if in effect on the date hereof or enter into any contract that requires the consent or approval of any third Person to consummate the transactions contemplated by this Agreement or make any modification to any existing Company Agreement or to any Governmental Permits; (ix) enter into any contract for the Company Entities purchase, lease (taken as lessee) or other occupancy of real property or exercise any option to purchase real property or any option to extend a wholelease listed on Schedule 5.9; (x) sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of the assets or properties of the Company, other than inventory and minor amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business consistent with past practice and other than Permitted Encumbrances; (xi) implement cancel any debts owed to or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated claims held by the SECCompany (including the settlement of any claims or litigation) or waived any other rights held by the Company other than in the ordinary course of business consistent with past practice; (xii) create, incur or assume, or agree to create, incur or assume, any indebtedness for borrowed money or enter into into, as lessee, any new line capitalized lease obligation (as defined in Statement of business or change in any material respect its business as currently conductedFinancial Accounting Standards No. 13); (xiii) transfer ownership, accelerate or grant delay collection of any license notes or other rights, to any Person accounts receivable in advance of or in respect of any material Intellectual Property, other than grants of non-exclusive licenses pursuant to license agreements entered into beyond their regular due dates or the dates when the same would have been collected in the ordinary course of business consistent with past practice; (xiv) make any material investment either by purchase of stock delay or securities, contributions to capital, property transfers, or purchase accelerate payment of any property account payable or assets other liability of any other Personthe Company beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business consistent with past practice; (xv) take allow the levels of raw materials, supplies, work-in-process, finished goods or other materials included in the inventory of the Company to vary in any action to exempt any Third Party or any action taken material respect from the levels customarily maintained by any Third Party from any Takeover Statute or similarly restrictive provisions of its organizational documents or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any Third Partiesthe Company; (xvi) make enter into any material change in its Tax methods, principles or electionstransaction with any Affiliate; (xvii) file enter into, adopt or amend any bonus, profit-sharing, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare, severance or other employee benefit plan with respect to employees of the Company, other than any such amendment to an employee benefit plan that is made to maintain the qualified status of such plan or its continued compliance with applicable law; (xviii) alter the compensation of the employees of the Company, other than changes made in accordance with normal compensation practices and consistent with past compensation practices; (xix) make any change in the accounting principles and practices used by the Company from those applied in the preparation of the financial statements referred to on Schedule 5.4 except as required by generally accepted accounting principles; (xx) prepare or file any Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election or change adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax electionReturns in prior periods (including positions, elections or settle methods which would have the effect of deferring income to periods after the Closing Date or compromise any Tax liability, other than as required by Lawaccelerating deductions to periods prior to the Closing Date); or (xviiixxi) propose, agree to take, enter into any agreement or make any commitment to take any of the actions action prohibited by this Section 5.1(b7.6(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).

Conduct of Business Prior to the Effective Time. (a) Except as expressly contemplated or permitted by this Agreement or Agreement, the Company shall carry on its business in, and not enter into any material transaction other than in accordance with, the ordinary course consistent with past practice and, to the extent consistent therewith, use its reasonable best efforts to preserve intact its current business organization, keep available the services of its current officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it (except, in each case, with the prior written consent of Parent). Without limiting the generality of the foregoing, which consent shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of except as expressly contemplated by this Agreement, the Company Parties shallshall not, and shall cause the Company Subsidiaries to, (a) conduct their business in the ordinary course consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement or to consummate the transactions contemplated hereby. (b) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(b) of the Company Disclosure Letter, (2) as expressly permitted by this Agreement, or (3) with without the prior written consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned, the Company Parties shall not, and shall not permit any of the Company Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Company Entity Charter Document; (iiA) make, declare, set aside or pay any dividends on, or make any other actual, constructive or deemed distributions (whether in the form of cash, equity or property) in respect of of, any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of the Company to the Company or to another wholly owned Subsidiary of the Company and other than the payment of the Series A Quarterly Distribution (as defined in the Company Partnership Agreement) in cash in lieu of “pay-in-kind” distributions on the Preferred Units as set forth in Section 5.1(b)(ii) of the Company Disclosure Letter)its capital stock, or otherwise make any payments to any stockholder in its capacity as such, (B) split, combine or reclassify any of their equity interestsits capital stock or issue, sell or repurchaseauthorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (C) purchase, redeem or otherwise acquire, directly or indirectly, acquire any shares of their equity interests capital stock of the Company or any other securities thereof thereof; (ii) issue, deliver, sell, pledge, dispose of or otherwise encumber any shares of its capital stock or other securities (including, without limitation, any rights, warrants or options to acquire any such equity interests shares of its capital stock or other securitiessecurities other than any issuance of shares of Common Stock upon the exercise of Stock Options and Warrants or the conversion of Company Preferred Stock in accordance with the terms thereof as in effect on the date hereof); (iii) grant any options, equity interest appreciation rights, restricted equity interests, restricted equity interest units, deferred equity interests, awards based on the value amend its Certificate of equity interests Incorporation or other equityBy-based award with respect to the Units under any Company Benefit Plan or otherwise, or grant any Person any right to acquire any equity interest in any Company Entitylaws; (iv) issue, deliver or sell or authorize or propose the issuance, delivery or sale of, or purchase or propose the purchase of, any equity interests, Voting Debt or other securities, securities convertible into equity interests, Voting Debt or other securities, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue, any such equity interests, Voting Debt, convertible securities or other securities; (v) sell, transfer, pledge, lease, license, mortgage, encumber or otherwise dispose of any of its material properties or assets, or cancel, release or assign any material amount of indebtedness to any Person or any material claims against any Person; (vi) incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Third Party (other than any Company Subsidiaries), except in the ordinary course of business consistent with past practice if such indebtedness would not result in total indebtedness of the Company and the Company Subsidiaries (on a consolidated basis) as of the Closing Date exceeding the Target Debt Cap; (1) amend or otherwise modify, except in the ordinary course of business, or violate, in each case in any material respect, the terms of, any Material Contract, or (2) create, renew or amend any Contract or, except as may be required by applicable Law, other binding obligation of a Company Entity containing (A) any restriction on the ability of a Company Entity to conduct its business as it is presently being conducted, or (B) any restriction on the ability of a Company Entity to engage in any type of activity or business; (viii) make any capital expenditures, (other than drydocking capital expenditures) capital additions or capital improvements except in the ordinary course of business consistent with past practice in amounts that do not exceed $3.0 million individually or $6.0 million in the aggregate; (ix) except as required by existing written Contracts or Company Benefit Plans existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors or officers of the Company Entities (together, the “Covered Employees”), (ii) pay any amounts to Covered Employees not required by any current plan or agreement (other than base salary in the ordinary course of business or in connection with reimbursement of expenses in the ordinary course of business), (iii) become a party to, establish, amend, commence participation in, make any adjustment to, terminate or commit itself to the adoption of any equity-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit or other employee benefit plan, or agreement or employment agreement with or for the benefit of any Covered Employee (or newly hired employees), (iv) accelerate the vesting of any equity-based compensation or other long-term incentive compensation under any Company Benefit Plans, (v) (A) hire employees in the position of Vice President or above, or (B) terminate the employment of any employee in the position of Vice President or above (other than due to terminations for cause), (vi) take any action which could reasonably be expected to give rise to a claim of resignation for “good reason” (or any term of similar import) in any employment agreement, or (vii) adopt, enter into or amend any collective bargaining agreement or other arrangement relating to a labor union or organized labor; (x) acquire or agree to acquire by merging or consolidating consol- idating with, or by purchasing a substantial portion of the assets ofof or equity in, or by any other manner, any business or any Person corporation, partnership, association or otherwise acquire other busi- ness organization or division thereof; (v) other than incurring indebtedness to Parent under the Parent Loan Agreement, incur or assume any indebtedness for borrowed money, enter into (as lessee) any capitalized lease obligation, guarantee any such indebtedness or obligation, issue or sell any debt securities, guarantee any debt securities of others or make any loans, advances or capital contributions to, or investments in, any other Person; (vi) make or incur or agree to acquire make or incur any assets which are material, individually new capital expenditure or expenditures other than in accordance with the aggregate, to the Company or the Company Entities (taken as a whole)Cash Flow Projection; (xivii) implement pay, discharge or adopt satisfy any material change in its Tax accounting claims, liabili- ties or financial accounting methodsobligations (absolute, principles accrued, asserted or practicesunasserted, except as may be required by applicable Law, GAAP, Regulation S-X contingent or other Regulation promulgated by the SEC; (xii) enter into any new line of business or change in any material respect its business as currently conducted; (xiii) transfer ownership, or grant any license or other rights, to any Person of or in respect of any material Intellectual Propertyotherwise), other than grants of non-exclusive licenses pursuant to license agreements entered into the pay- ment, discharge or satisfaction thereof in the ordinary course of business consistent with past practice; (xivviii) alter through merger, liquidation, reorganiza- tion, restructuring or in any other fashion its corporate structure; (ix) enter into or adopt, or amend, any bonus, incentive, deferred compensation, insurance, medical, hospi- tal, disability or severance plan, agreement or arrangement or enter into or amend any employee benefit plan or employment, consulting or management agreement, other than any such amendment to an employee benefit plan that is made to maintain the qualified status of such plan or its contin- ued compliance with applicable law and annual renewals of such plans that do not materially increase the benefits accruing to plan participants or the total cost or liability to the Company; (x) make any change in accounting practices or policies applied in the preparation of the financial statements referred to in Section 5.4, except as required by generally accepted accounting principles; (xi) modify any Company Agreement, enter into any agreement, understanding, obligation or commitment, or incur any indebtedness or obligation, of the type that would have been a Company Agreement if in existence on the date hereof, or enter into any contract which requires any approval or consent by any other Person to the transactions contemplated by this Agreement; (xii) pay or commit to pay any bonus to any officer or employee of the Company, or make any other material investment either by change in the compensation of its employees; provided, however, that nothing contained herein shall preclude the Company from adjusting salaries for its employees pursuant to the Company's normal year-end salary review process in an aggregate amount not to exceed 6% of the prior year's aggregate compensation base as reflected on Form W-3 for the employee group subject to such salary review; (xiii) make any change in its business or operations or make any expenditure which shall exceed the amount, as set forth in Schedule 5.26, budgeted therefor; (xiv) enter into any contract for the purchase of stock or securities, contributions to capital, property transfers, or purchase of any real property or assets of exercise any other Personoption to extend a lease listed in Schedule 5.11; (xv) take sell, lease (as lessor), transfer or otherwise dispose of, or mortgage or pledge, or impose or suffer to be imposed any action to exempt Encumbrance on, any Third Party of the Company's assets, other than inventory and minor amounts of personal property sold or any action taken by any Third Party from any Takeover Statute or similarly restrictive provisions otherwise disposed of its organizational documents or terminate, amend or waive any provisions for fair value in the ordinary course of any confidentiality or standstill agreements in place the Company's business consistent with any Third Partiespast practice and other than Permitted Encumbrances; (xvi) make cancel any material change debts owed to or claims held by the Company (including the settlement of any claims or litigation) other than in its Tax methods, principles or electionsthe ordinary course of the Company's business consistent with past practice; (xvii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of its business consistent with past practice; (xviii) delay or accelerate payment of any account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of its business consistent with past practice; (xix) allow the levels of raw materials, sup- plies, work-in-process or other materials included in its inventory to vary in any material respect from the levels customarily maintained in its business; (xx) prepare or file or amend any Tax ReturnReturns in a manner inconsistent with past practice or, on such Tax Returns, take any position, make or change any Tax election, or settle adopt any method that is inconsistent with the positions taken, elections made or compromise any methods used in preparing and filing similar Tax liability, other than as required by LawReturns in prior periods; or (xviiixxi) propose, agree to take, or make enter into any commitment to take any of other transaction affecting the actions prohibited by this Section 5.1(b). (c) Except as set forth in Section 5.1(c) of the Parent Disclosure Letter, or as expressly contemplated or permitted by this Agreement or with the prior written consent business of the Company, which shall not be unreasonably withheld, delayed or conditioned, during the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, Parent shall, and shall cause its Subsidiaries to, (a) conduct their business other than in the ordinary course of business consistent with past practice and in compliance with all applicable Laws, (b) use reasonable best efforts to (i) maintain and preserve intact their business organizations and business relationships, (ii) retain the services of their officers and employees, and (iii) maintain their rights and Permits, and (c) take no action that would reasonably be expected to adversely affect or delay the ability of the parties hereto to (i) obtain any necessary approvals of any Governmental Entity required for the transactions contemplated hereby or (ii) perform their covenants and agreements under this Agreement (other than as such obligation may be limited or altered as provided in Section 6.3) or to consummate the transactions contemplated hereby. (d) During the period from the date of this Agreement and continuing until the Effective Time or the earlier termination of this Agreement, except (1) as set forth in Section 5.1(d) of the Parent Disclosure Letter, (2) as expressly contemplated by this Agreement, or (3) with the prior written consent of the Company, which shall not be unreasonably withheld, delayed or conditioned, Parent shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly: (i) cause or permit any amendment, modification, alteration or rescission of any Parent Party Charter Documents in a manner that adversely affects the terms of the Parent Common Stock; (ii) make, declare, set aside or pay any dividends or distributions (whether in the form of cash, equity or property) in respect of any of their equity interests (other than dividends or distributions by any wholly owned Subsidiary of Parent to Parent or to another wholly owned Subsidiary of Parent) or split, combine or reclassify any of their equity interests, or repurchase, redeem or otherwise acquire, directly or indirectly, any of their equity interests or any other securities thereof or any rights, warrants or options to acquire any such equity interests or other securities, other than the repurchase of no more than 1,685,725 shares of Parent Common Stock; (iii) implement or adopt any material change in its Tax accounting or financial accounting methods, principles or practices, except as may be required by applicable Law, GAAP, Regulation S-X or other Regulation promulgated by the SEC; (iv) adopt or enter into a plan of complete or partial liquidation or dissolution; (v) make any material change in its Tax methods, principles or elections; or (vi) propose, agree to take, or make any commitment to take any of the actions prohibited by this Section 5.1(d).