Common use of Interim Operations Clause in Contracts

Interim Operations. Except as set forth on Schedule 3.23, since the Interim Balance Sheet Date, the Company has operated only in the Ordinary Course of Business and has not: (a) changed its authorized or issued capital stock; granted any stock option or right to purchase shares of capital stock; issued any security convertible into such capital stock; or made any Equity Distributions; (b) incurred or become subject to, or agreed to incur or become subject to, any material obligation or Liability, except in the Ordinary Course of Business; (c) mortgaged or pledged any of its assets, tangible or intangible, except for Permitted Liens; (d) sold or transferred or agreed to sell or transfer any of its assets, or canceled or agreed to cancel any debts owed to it or any of its claims except in the Ordinary Course of Business; (e) suffered any extraordinary losses (as that term is defined by GAAP) or, except in the Ordinary Course of Business, waived any material rights; (f) terminated or agreed to terminate any material contract, agreement, license, or other instrument to which it is a party, except in the Ordinary Course of Business; (g) increased or agreed to increase the rate of compensation payable by it to any employee, whose compensation is determined other than by multiplying the number of hours worked by an hourly rate (a “Salaried Employee”), over the rate being paid or accrued to them as of the Interim Balance Sheet Date (other than increases granted to individual Salaried Employees for merit, length of service, change in position or responsibility or other reasons specific to individual Salaried Employees and not generally to a class or group of Salaried Employees); (h) made or agreed to make any accrual or arrangement for or payment of bonuses or special compensation of any kind to any of its Salaried Employees or made any general increase in the salary or bonus payable or to become payable by the Company to any Employee other than Salaried Employees (other than increases granted to individual Employees for merit, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereof); (i) entered into any agreement, written or oral, providing for the employment of any Employee or any severance or termination benefits payable or to become payable by the Company to any Employee; (j) taken any action which would have constituted a breach of any negative covenant of Seller set forth in Article V if such negative covenant had applied since the Interim Balance Sheet Date; or (k) suffered any shortages of materials or supplies or any casualty that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect.

Interim Operations. Except as set forth on Schedule 3.23, since Since the Interim Balance Sheet Date, the Company has operated only in the Ordinary Course of Business Business, and except as set forth in Schedule 3.24 the Company has not: (a) suffered any material adverse change in the assets, properties, business, operations, prospects, net income or financial condition of the Company or any Basis therefor; (b) changed its authorized or issued capital stock; granted any stock option or right to purchase shares of capital stock; issued any security convertible into such capital stock; or made any Equity Distributions; (bc) incurred or become subject to, or agreed to incur or become subject to, any material obligation or Liability, except in the Ordinary Course of Business; (cd) mortgaged or pledged any of its assets, tangible or intangible, except for Permitted Liens; (de) sold or transferred or agreed to sell or transfer any of its assets, or canceled or agreed to cancel any debts owed to it or any of its claims except in the Ordinary Course of Business; (ef) suffered any extraordinary losses (as that term is defined by GAAP) or, except in the Ordinary Course of Business, waived any material rights; (fg) terminated or agreed to terminate any material contract, agreement, license, or other instrument to which it is a party, except in the Ordinary Course of Business; (gh) increased or agreed to increase the rate of compensation payable by it to any employee, whose compensation is determined other than by multiplying the number of hours worked by an hourly rate (a “Salaried Employee”"SALARIED EMPLOYEE"), over the rate being paid or accrued to them as of the Interim Balance Sheet Date (other than increases granted to individual Salaried Employees for merit, length of service, change in position or responsibility or other reasons specific to individual Salaried Employees and not generally to a class or group of Salaried Employees)Date; (hi) made or agreed to make any accrual or arrangement for or payment of bonuses or special compensation of any kind to any of its Salaried Employees Employees; or made any general increase in the salary or bonus payable or to become payable by the Company to any Employee other than Salaried Employees (other than increases granted to individual Employees employees for merit, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereof); (ij) entered into any agreement, written or oral, providing for the employment of any Employee or any severance or termination benefits payable or to become payable by the Company to any Employee; (jk) taken any action which would have constituted a breach of any negative covenant of the Seller set forth in Article V or VI if such negative covenant had applied since the Interim Balance Sheet Date; or (kl) suffered any shortages of materials or supplies or any casualty that individually or in the aggregate has had or would could reasonably be expected to have a Material Adverse Effect.

Interim Operations. Except as set forth on Schedule 3.235.08, since the Interim Balance Sheet Financial Statement Date: the Business has been conducted by the Company only in the ordinary and usual course consistent with past practices; there has not occurred any change, event or circumstance that has had, or could reasonably be expected to have, a Material Adverse Effect; the Company has operated only not: paid, discharged or satisfied any claims, liabilities or obligations (absolute, accrued, contingent or otherwise), other than the payment, discharge or satisfaction in the Ordinary Course ordinary and usual course of Business business and has not: (a) changed its authorized consistent with past practice of liabilities and obligations incurred in the ordinary and usual course of business and consistent with past practice; borrowed any amount or issued capital stock; granted any stock option or right to purchase shares of capital stock; issued any security convertible into such capital stock; or made any Equity Distributions; (b) incurred or become subject to any other liabilities (absolute or contingent), other than trade payables in the ordinary course of business, except as set forth on Schedule 5.08(c)(ii); declared or made any payment or distribution of cash or other property to Seller or purchased or redeemed, or made any agreements to purchase or redeem, any of its equity securities; issued, delivered, sold, pledged or encumbered, or authorized, proposed or agreed to the issuance, delivery, sale, pledge or encumbrance of, any shares of capital stock or bonds or any other security (or any right to acquire such capital stock or other security, including options) of the Company or any of its Subsidiaries, or any right, options or warrants with respect thereto; effected any recapitalization, reclassification or like change in the capitalization of the Company or any of its Subsidiaries, or declared or paid dividends on, or made other distributions in respect of, any of its capital stock, or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or repurchased, redeemed or otherwise acquired, or modified or amended, any shares of capital stock of the Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities; canceled any debts owing to the Company or waived any claims or rights; sold, transferred, or otherwise disposed of, any of the Assets; disposed of, failed to take reasonable steps to protect, or permitted to lapse, any rights for the use of, any Intellectual Property, or disposed of, failed to take reasonable steps to protect, or disclosed to any Person any Proprietary Information or Confidential Information; made any change in any its methods of accounting or accounting practices; written off as uncollectible any notes or accounts receivable, other than in the ordinary course of business consistent with past practice; made any capital expenditures or capital expenditure commitments in excess of $10,000 individually or $25,000 in the aggregate, except as set forth on Schedule 5.08(c)(xi); entered into any transaction or series of related transactions providing for payments by or to the Company in excess of $25,000 in the aggregate, whether or not in the ordinary course of business; made any change in the manner in which products or services have been developed or marketed; had any labor dispute or received notice of any grievance with respect thereto; loaned or advanced any amount to, or made any payments to or received any payments from, or sold, transferred or leased any of its assets to, any Affiliate, except in the ordinary course of business; discharged or satisfied any Encumbrance or paid any obligation or liability (absolute or contingent), other than current liabilities paid in the ordinary course of business consistent with past practices; made any change in the cash management or working capital management of the Company other than in the ordinary course of business; (A) terminated, canceled or requested any material change in, or agreed to incur or become subject toany material change in, any material obligation Subsisting Contract, or Liability(B) entered into any contract which would constitute a Subsisting Contract as defined herein, except other than in the Ordinary Course ordinary course of Business; (c) mortgaged or pledged any of its assetsbusiness consistent with past practices, tangible or intangiblein either case, except for Permitted Liens; (d) sold or transferred or other than as set forth on Schedule 5.08(c)(xviii); adopted, agreed to sell or transfer any of its assetsadopt, or canceled made any announcement regarding the adoption of (A) any new pension, retirement or agreed other employee benefit plan, program or policy or (B) any amendment to cancel any debts owed to it existing plan, policy or program; increased the compensation, bonuses or benefits of any employee, officer, director, or consultant of the Company or any of its claims except Subsidiaries, other than annual increases in the Ordinary Course ordinary course of Business; (e) suffered business consistent with past practices at the regularly scheduled times, other than as set forth on Schedule 5.08(c)(xx); amended or modified any extraordinary losses (as that term is defined by GAAP) orof the organizational documents of the Company; made any material election with respect to Taxes or made any change in any such election; made any change in its methods of accounting in effect at November 30, 2005, except as required by changes in GAAP as agreed to by the Ordinary Course of BusinessCompany's independent public accountants or as required by applicable law; made any charitable contributions or pledges, waived other than as set forth on Schedule 5.08(c)(xxiv); settled any material rights; (f) terminated Legal Proceeding to which the Company is or was a party, other than as set forth on Schedule 5.08(c)(xxv); or suffered or agreed to terminate take any material contract, agreement, license, or other instrument to which it is a party, except in the Ordinary Course of Business; (g) increased or agreed to increase the rate of compensation payable by it to any employee, whose compensation is determined other than by multiplying the number of hours worked by an hourly rate (a “Salaried Employee”), over the rate being paid or accrued to them as of the Interim Balance Sheet Date actions set forth in this subparagraph (other than increases granted to individual Salaried Employees for merit, length of service, change in position or responsibility or other reasons specific to individual Salaried Employees and not generally to a class or group of Salaried Employeesc); (h) made or agreed to make any accrual or arrangement for or payment of bonuses or special compensation of any kind to any of its Salaried Employees or made any general increase in ; the salary or bonus payable or to become payable Business has been conducted by the Company only in the ordinary and usual course consistent with past practices; the Company has taken no steps to seek protection pursuant to any Employee other than Salaried Employees (other than increases granted bankruptcy law, Seller has no reason to individual Employees for meritbelieve that any creditors of the Company intend to initiate involuntary bankruptcy proceedings against the Company, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereof); (i) entered into any agreement, written or oral, providing for the employment Seller has no knowledge of any Employee or any severance or termination benefits payable or to become payable by the Company to any Employee; (j) taken any action fact which would have constituted reasonably lead a breach creditor to do so; and none of any negative covenant of Seller set forth in Article V if such negative covenant had applied since the Interim Balance Sheet Date; or (k) Assets has suffered any shortages damage, destruction or casualty loss (as a result of materials fire, explosion or supplies otherwise), whether or any casualty that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effectnot covered by insurance.

Interim Operations. Except as set forth on Schedule 3.23, since Since the Interim Balance Sheet Date, the Company has operated only in the Ordinary Course of Business Business, and except as set forth in Schedule 3.24 the Company has not: (a) suffered any material adverse change in the assets, properties, business, operations, prospects, net income or financial condition of the Company or any Basis therefor; (b) changed its authorized or issued capital stock; granted any stock option or right to purchase shares of capital stock; issued any security convertible into such capital stock; or made any Equity Distributions; (bc) incurred or become subject to, or agreed to incur or become subject to, any material obligation or Liability, except in the Ordinary Course of Business; (cd) mortgaged or pledged any of its assets, tangible or intangible, except for Permitted Liens; (de) sold or transferred or agreed to sell or transfer any of its assets, or canceled or agreed to cancel any debts owed to it or any of its claims except in the Ordinary Course of Business; (ef) suffered any extraordinary losses (as that term is defined by GAAP) or, except in the Ordinary Course of Business, waived any material rights; (fg) terminated or agreed to terminate any material contract, agreement, license, or other instrument to which it is a party, except in the Ordinary Course of Business; (gh) increased or agreed to increase the rate of compensation payable by it to any employee, whose compensation is determined other than by multiplying the number of hours worked by an hourly rate (a “"Salaried Employee”"), over the rate being paid or accrued to them as of the Interim Balance Sheet Date (other than increases granted to individual Salaried Employees for merit, length of service, change in position or responsibility or other reasons specific to individual Salaried Employees and not generally to a class or group of Salaried Employees)Date; (hi) made or agreed to make any accrual or arrangement for or payment of bonuses or special compensation of any kind to any of its Salaried Employees Employees; or made any general increase in the salary or bonus payable or to become payable by the Company to any Employee other than Salaried Employees (other than increases granted to individual Employees employees for merit, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereof); (ij) entered into any agreement, written or oral, providing for the employment of any Employee or any severance or termination benefits payable or to become payable by the Company to any Employee; (jk) taken any action which would have constituted a breach of any negative covenant of the Seller set forth in Article V or VI if such negative covenant had applied since the Interim Balance Sheet Date; or (kl) suffered any shortages of materials or supplies or any casualty that individually or in the aggregate has had or would could reasonably be expected to have a Material Adverse Effect.

Interim Operations. Except as set forth on Schedule 3.23, since Since the Interim Balance Sheet Date, the Company has operated only in the Ordinary Course of Business Business, and except as set forth in Schedule 3.24 the Company has not: (a) taken any action, or omitted to take any action, that would result in, or suffered, any Material Adverse Effect nor has there been any Basis therefor; (b) changed its authorized or issued capital stock; granted any stock option or right to purchase shares of capital stock; issued any security convertible into such capital stock; or made any Equity Distributions; (bc) incurred or become subject to, or agreed to incur or become subject to, any material obligation or LiabilityLiability individually in excess of $25,000, except other than those reflected in the Ordinary Course of BusinessInterim Balance Sheet; (cd) mortgaged or pledged any of its assets, tangible or intangible, except for Permitted Liens; (di) sold or transferred or agreed to sell or transfer any of its assets, or canceled cancelled or agreed to cancel any debts owed or claims or (ii) transferred or agreed to it or any of its claims except transfer (other than image licensing done in the Ordinary Course of Business) any of its assets; (ef) suffered any extraordinary losses (as that term is defined by GAAP) or, except in the Ordinary Course of Business, or waived any material rights; (fg) terminated or agreed to terminate any material contractContract, agreement, license, or other instrument to which it is a party, except in the Ordinary Course of Business; (gh) increased or agreed to increase the rate of compensation payable by it to any employeeEmployee, whose compensation is determined other than by multiplying the number of hours worked by an hourly rate (a “Salaried Employee”), over the rate being paid or accrued to them as of the Interim Balance Sheet Date (other than increases granted to individual Salaried Employees for merit, length of service, change in position or responsibility or other reasons specific to individual Salaried Employees and not generally to a class or group of Salaried Employees)Date; (hi) made or agreed to make any accrual or arrangement for or payment of bonuses or special compensation of any kind to any of its Salaried Employees Employees; or made any general increase in the salary or bonus payable or to become payable by the Company to any Employee other than Salaried Employees (other than increases granted to individual Employees employees for merit, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereof); (ij) entered into any agreement, written or oral, providing for the employment of any Employee or any severance or termination benefits payable or to become payable by the Company to any Employee; (j) taken any action which would have constituted a breach of any negative covenant of Seller set forth in Article V if such negative covenant had applied since the Interim Balance Sheet Date; or (k) suffered any shortages of materials or supplies or any casualty that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect.

Interim Operations. Except as set forth on Schedule 3.23, since Since the Interim Balance Sheet Date, the Company WHL has operated only in the Ordinary Course of Business Business, and except as set forth in Schedule 3.23, WHL has not: (a) suffered any material adverse change in the assets, properties, business, operations, prospects, net income or financial condition of WHL or any Basis therefor; (b) changed its authorized or issued capital stock; granted any stock option or right to purchase shares of capital stock; issued any security convertible into such capital stock; or made any Equity Distributions; (bc) incurred or become subject to, or agreed to incur or become subject to, any material obligation or Liability, except in the Ordinary Course of Business; (cd) mortgaged or pledged any of its assets, tangible or intangible, except for Permitted Liens; (de) sold or transferred or agreed to sell or transfer any of its assets, or canceled or agreed to cancel any debts owed to it or any of its claims except in the Ordinary Course of Business; (ef) suffered any extraordinary losses (as that term is defined by GAAP) or, except in the Ordinary Course of Business, waived any material rights; (fg) terminated or agreed to terminate any material contract, agreement, license, or other instrument to which it is a party, except in the Ordinary Course of Business; (gh) increased or agreed to increase the rate of compensation payable by it to any employee, whose compensation is determined other than by multiplying the number of hours worked by an hourly rate (a “Salaried Employee”), over the rate being paid or accrued to them as of the Interim Balance Sheet Date (other than increases granted to individual Salaried Employees for merit, length of service, change in position or responsibility or other reasons specific to individual Salaried Employees and not generally to a class or group of Salaried Employees)Date; (hi) made or agreed to make any accrual or arrangement for or payment of bonuses or special compensation of any kind to any of its Salaried Employees Employees; or made any general increase in the salary or bonus payable or to become payable by the Company WHL to any Employee other than Salaried Employees (other than increases granted to individual Employees employees for merit, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereof); (ij) entered into any agreement, written or oral, providing for the employment of any Employee or any severance or termination benefits payable or to become payable by the Company WHL to any Employee; (jk) taken any action which would have constituted a breach of any negative covenant of Seller the Shareholders set forth in Article V if such negative covenant had applied since the Interim Balance Sheet Date; or (kl) suffered any shortages of materials or supplies or any casualty that individually or in the aggregate has had or would could reasonably be expected to have a Material Adverse Effect.

Interim Operations. Except as set forth on Schedule 3.23, since Since the Interim Balance Sheet Date, the Company Seller has operated the Precision Design Software Business only in the Ordinary Course of Business and and, except as set forth in Disclosure Schedule 3.15, with respect to the Precision Design Software Business, Seller has not: (a) changed its authorized suffered any adverse change in the assets, properties, business, operations, prospects, net income or issued capital stock; granted any stock option or right to purchase shares financial condition of capital stock; issued any security convertible into such capital stock; or made any Equity Distributionsthe Precision Design Software Business; (b) incurred or become subject to, or agreed to incur or become subject to, any material obligation or Liability, except in the Ordinary Course of Business; (c) mortgaged or pledged any of its assets, tangible or intangible, or granted any Encumbrance except for Permitted Liens; (d) sold or transferred or agreed to sell or transfer any of its assets, or canceled or agreed to cancel any debts owed to it or any of its claims except in the Ordinary Course of Business; (e) suffered any extraordinary losses loss (as that term is defined whether or not covered by GAAPinsurance) or, except in the Ordinary Course of Business, or waived any material rights; (f) terminated or agreed to terminate any material contractContract, agreement, governmental license, or other instrument to which it either Seller is a party, except in the Ordinary Course of Business; (g) increased or agreed to increase the rate of compensation payable by it to any employeePrecision Design Software Employee, whose compensation is determined other than by multiplying except in the number Ordinary Course of hours worked by an hourly rate (a “Salaried Employee”), over the rate being paid or accrued to them as of the Interim Balance Sheet Date (other than increases granted to individual Salaried Employees for merit, length of service, change in position or responsibility or other reasons specific to individual Salaried Employees and not generally to a class or group of Salaried Employees)Business; (h) made delayed or agreed to make any accrual or arrangement for or postponed the payment of bonuses or special compensation Seller’s accounts payable and other Liabilities outside the Ordinary Course of any kind to any of its Salaried Employees or made any general increase in the salary or bonus payable or to become payable by the Company to any Employee other than Salaried Employees (other than increases granted to individual Employees for merit, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereof)Business; (i) entered into made any agreement, written commitment to or oral, providing for the employment of assumed any Employee or any severance or termination benefits payable or to become payable by the Company Liability to any Employeelabor organization which represents, or proposes to represent, employees of Seller; (j) taken entered into any action which would have constituted a breach sale, assignment, lease or other transfer or disposition of any negative covenant of the Acquired Assets of Seller set forth except in Article V if such negative covenant had applied since the Interim Balance Sheet DateOrdinary Course of Business or in connection with the acquisition of similar property or assets in the Ordinary Course of Business; (k) transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Precision Design Software Business Intellectual Property except in the Ordinary Course of Business; (l) permitted the loss, lapse or abandonment of any Precision Design Software Business Intellectual Property; (m) suffered or engaged in any other material occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business; (n) disclosed any Confidential Information outside the Ordinary Course of Business; (o) discharged a Material Liability or Encumbrance outside the Ordinary Course of Business; or (kp) suffered committed to do any shortages of materials or supplies or any casualty that individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effectforegoing.

Interim Operations. Except as set forth on Schedule 3.23From the date of this Agreement until the earlier of the Funding Date or the termination of this Agreement, since unless the Interim Balance Sheet Dateprior written consent of the Investors shall have been obtained, the Company has operated only in covenants and agrees that it will not do or agree or commit to do, or permit any of its Subsidiaries to do or agree or commit to do, any of the Ordinary Course of Business and has notfollowing: (a) changed its authorized amend the Company’s Certificate of Incorporation or issued capital stock; granted bylaws or the certificate of incorporation or bylaws (or corresponding organizational documents) of any stock option or right to purchase shares of capital stock; issued any security convertible into such capital stock; or made any Equity Distributions;Company Subsidiaries, (b) incurred or become subject to, or agreed to incur or become subject toguarantee any additional Indebtedness except for (i) intercompany Indebtedness, any material obligation or Liability, except (ii) borrowings under the Company’s credit facilities as in effect on the date of this Agreement and overnight borrowing in the Ordinary Course ordinary course of Business;business consistent with past practice. (c) mortgaged repurchase, redeem, or pledged otherwise acquire or exchange, directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of the company or any of its assetsSubsidiaries, tangible or intangiblemake any other distribution in respect of the Company’s capital stock, except for Permitted Liensrepurchases made in connection with any Benefit Plan or cash dividends on Common Stock not to exceed $0.01 per share for each fiscal quarter; (d) sold or transferred or agreed to sell or transfer any of its assetsexcept for this Agreement, or canceled pursuant to the exercise of stock options outstanding as of the date hereof and pursuant to and in accordance with the Benefit Plans as in existence on the date hereof, issue, sell, pledge, encumber, authorize the issuance of, enter into any contract to issue, sell, pledge, encumber, or agreed authorize the issuance of, or otherwise permit to cancel become outstanding, any debts owed to it additional shares of Common Stock or any other capital stock of the Company or any Subsidiaries, or any stock appreciation rights, or any option, warrant, or other right in respect of the capital stock of the Company or any of its claims except in the Ordinary Course of BusinessSubsidiaries; (e) suffered adjust, split, combine or reclassify any extraordinary losses capital stock of the Company or any of its Subsidiaries or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Common Stock or any other capital stock of the Company or any of its Subsidiaries, or sell, lease, mortgage, permit any Lien (as that term is defined by GAAP) orother than, except in the Ordinary Course case of Businessthe following subclause (ii), waived Permitted Liens that are not material individually or in the aggregate), or otherwise dispose of or otherwise encumber (i) any shares of capital stock of any Company Subsidiaries or (ii) any material rightsasset other than in the ordinary course of business consistent with past practice; (f) terminated purchase any securities or agreed to terminate make any material contractinvestment, agreementeither by purchase of stock or securities, licensecontributions to capital, asset transfers, or purchase of any assets, in any Person other instrument to which it is than a partyCompany Subsidiary, except or otherwise acquire direct or indirect control over any Person, other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice; (g) increased or agreed to increase the rate of compensation payable by it to any employee, whose compensation is determined (i) other than as required by multiplying the number of hours worked by an hourly rate (a “Salaried Employee”)agreements executed in connection with this Agreement and identified on the Disclosure Schedule, over grant any increase in compensation or benefits to the rate being paid employees or accrued to them as officers of the Interim Balance Sheet Date (Company or any of its Subsidiaries, except for merit-based salary increases for employees other than increases granted to individual Salaried Employees for meritofficers in the ordinary course in accordance with past practice; (ii) pay any (x) severance or termination pay or (y) any bonus, length in either case other than as required by written severance policies or written contracts in effect on the date of service, change this Agreement or in position the ordinary course of business consistent with past practice; (iii) enter into or responsibility amend any severance agreements with employees or officers of the Company or any of its Subsidiaries; (iv) grant any increase in fees or other reasons specific increases in compensation or other benefits to individual Salaried Employees and not generally to directors of the Company or any of its Subsidiaries except in the ordinary course of business consistent with past practice; or (v) waive any stock repurchase rights, accelerate, amend or change the period of exercisability of any stock options or other equity rights or restricted stock, or reprice any stock options or other equity rights granted under a class Benefit Plan or group of Salaried Employees)authorize cash payments in exchange for any stock options or other equity rights; (h) made enter into or agreed to make amend any accrual employment contract between the Company or arrangement for or payment of bonuses or special compensation of any kind to any of its Salaried Employees or made Subsidiaries and any general increase in the salary or bonus payable or to become payable by Person that the Company or such Subsidiary does not have the unconditional right to any Employee other than Salaried Employees terminate without liability (other than increases granted to individual Employees liability for merit, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereofservices already rendered); (i) entered into adopt any agreementnew Benefit Plan or terminate or withdraw from, written or oralmake any change in or to, providing for any Benefit Plans other than any such change that is required by law or that, in the employment opinion of counsel, is necessary or advisable to maintain the tax qualified status of any Employee such plan, or make any severance distributions from such Benefit Plans, except as required by law, the terms of such Benefit Plans as in effect on the date hereof or termination benefits payable or to become payable by in the Company to any Employeeordinary course of business consistent with past practice; (j) taken make any action which would have constituted significant change in any accounting methods or systems of internal accounting controls, except as required by GAAP; (k) make, change or revoke any material Tax election, (ii) change any of its methods of accounting for Tax purposes, (iii) settle or compromise any material Tax liability or any Tax disputes, claims, audits, examinations, or other proceedings, (iv) file any material amended Tax return or (v) enter into a breach “closing agreement” described in Section 7121 of the Code (or any corresponding or comparable provision of state, local or foreign Law); (l) commence any litigation other than in the ordinary course of business consistent with past practice, or settle any litigation (i) involving any liability to the Company or any of its Subsidiaries for money damages in excess of $500,000 or materially restricting or otherwise affecting the business or operations of the Company or any of its Subsidiaries or (ii) relating to the transactions contemplated hereby; (m) except in the ordinary course of business consistent with past practice, enter into, modify, amend or terminate any Company Significant Agreement or waive, release, compromise or assign any material rights or claims; (n) enter into any new line of business or change in any material respect its lending, investment, risk and asset-liability management, interest rate or fee pricing with respect to depository accounts, hedging and other material banking or operating policies except as required by law or by rules or policies imposed by a Governmental Entity; (o) make or commit to make any capital expenditure, except (i) capital expenditures of the Company and its Subsidiaries in the ordinary course of business on information technology used in the ordinary course of business not exceeding $5,000,000; and (ii) capital expenditures of the Company and its Subsidiaries in the ordinary course of business (other than capital expenditures described in the foregoing clause (i)) not exceeding $3,000,000; (p) except as required by law or applicable regulatory authorities, make any material changes in its credit administration policies or loan rating system, or otherwise make any material changes to its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loans; (q) purchase or lease any real property in respect of any negative covenant branch or other facility, or, without previously notifying and consulting with Investors, make any application to open, relocate or close, or open, relocate or close any branch or other facility; (r) sell, transfer or otherwise dispose of Seller set forth any property or assets that are, individually or in Article V if such negative covenant had applied since the Interim Balance Sheet Dateaggregate, material, except for the sale of, in each case in the ordinary course of business, (i) Small Business Administration Loans, (ii) OREO and (iii) loans through the Mortgage Purchasing Department of the Bank; (s) without previously notifying and consulting with Investors, except for Loans or commitments for Loans that have previously been approved by the Bank prior to the date of this Agreement, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating in excess of $1,000,000, or amend or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its affiliates) in excess of $1,000,000; (t) fail to comply with Regulatory Agreements or the C&D Order; or (ku) suffered agree to take, make any shortages commitment to take, or adopt any resolutions of materials or supplies or the Company’s Board of Directors in support of, any casualty that individually or in of the aggregate has had or would reasonably be expected to have a Material Adverse Effectactions prohibited by this Section 3.1.

Interim Operations. Except as set forth on Schedule 3.23, since Since the Interim Balance Sheet Date, the Company has operated only in the Ordinary Course of Business Business, and except as set forth in Schedule 3.24 the Company has not: (a) suffered any material adverse change in the assets, properties, business, operations, prospects, net income or financial condition of the Company or any Basis therefor; (b) changed its authorized or issued capital stock; granted any stock option or right to purchase shares of capital stock; issued any security convertible into such capital stock; or made any Equity Distributions; (bc) incurred or become subject to, or agreed to incur or become subject to, any material obligation or Liability, except in the Ordinary Course of Business; (cd) mortgaged or pledged any of its assets, tangible or intangible, except for Permitted Liens; (de) sold or transferred or agreed to sell or transfer any of its assets, or canceled or agreed to cancel any debts owed to it or any of its claims except in the Ordinary Course of Business; (ef) suffered any extraordinary losses (as that term is defined by GAAP) or, except in the Ordinary Course of Business, waived any material rights; (fg) terminated or agreed to terminate any material contract, agreement, license, or other instrument to which it is a party, except in the Ordinary Course of Business; (gh) increased or agreed to increase the rate of compensation payable by it to any employee, whose compensation is determined other than by multiplying the number of hours worked by an hourly rate (a “"Salaried Employee”"), over the rate being paid or accrued to them as of the Interim Balance Sheet Date (other than increases granted to individual Salaried Employees for merit, length of service, change in position or responsibility or other reasons specific to individual Salaried Employees and not generally to a class or group of Salaried Employees)Date; (hi) made or agreed to make any accrual or arrangement for or payment of bonuses or special compensation of any kind to any of its Salaried Employees Employees; or made any general increase in the salary or bonus payable or to become payable by the Company to any Employee other than Salaried Employees (other than increases granted to individual Employees employees for merit, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereof); (ij) entered into any agreement, written or oral, providing for the employment of any Employee or any severance or termination benefits payable or to become payable by the Company to any Employee; (jk) taken any action which would have constituted a breach of any negative covenant of the Seller set forth in Article V or VI if such negative covenant had applied since the Interim Balance Sheet Date; or (kl) suffered any shortages of materials or supplies or any casualty that individually or in the aggregate has had or would could reasonably be expected to have a Material Adverse Effect.

Interim Operations. Except as set forth on Schedule 3.23, since Since the Interim Balance Sheet Date, the Company has operated only in the Ordinary Course of Business Business, and except as set forth in Schedule 3.24 the Company has not: (a) suffered any material adverse change in the assets, properties, business, operations, prospects, net income or financial condition of the Company or any Basis therefor; (b) changed its authorized or issued capital stock; granted any stock option or right to purchase shares of capital stock; issued any security convertible into such capital stock; or made any Equity Distributions; (bc) incurred or become subject to, or agreed to incur or become subject to, any material obligation or Liability, except in the Ordinary Course of Business; (cd) mortgaged or pledged any of its assets, tangible or intangible, except for Permitted Liens; (de) sold or transferred or agreed to sell or transfer any of its assets, or canceled or agreed to cancel any debts owed to it or any of its claims except in the Ordinary Course of Business; (ef) suffered any extraordinary losses (as that term is defined by GAAP) or, except in the Ordinary Course of Business, waived any material rights; (fg) terminated or agreed to terminate any material contract, agreement, license, or other instrument to which it is a party, except in the Ordinary Course of Business; (gh) increased or agreed to increase the rate of compensation payable by it to any employee, whose compensation is determined other than by multiplying the number of hours worked by an hourly rate (a “Salaried Employee”), over the rate being paid or accrued to them as of the Interim Balance Sheet Date (other than increases granted to individual Salaried Employees for merit, length of service, change in position or responsibility or other reasons specific to individual Salaried Employees and not generally to a class or group of Salaried Employees)Date; (hi) made or agreed to make any accrual or arrangement for or payment of bonuses or special compensation of any kind to any of its Salaried Employees Employees; or made any general increase in the salary or bonus payable or to become payable by the Company to any Employee other than Salaried Employees (other than increases granted to individual Employees employees for merit, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereof); (ij) entered into any agreement, written or oral, providing for the employment of any Employee or any severance or termination benefits payable or to become payable by the Company to any Employee; (jk) taken any action which would have constituted a breach of any negative covenant of the Seller set forth in Article V or VI if such negative covenant had applied since the Interim Balance Sheet Date; or (kl) suffered any shortages of materials or supplies or any casualty that individually or in the aggregate has had or would could reasonably be expected to have a Material Adverse Effect.

Interim Operations. Except as set forth on Schedule 3.23, since Since the Interim Balance Sheet Date, the Company has operated only in the Ordinary Course of Business Business, and except as set forth in Schedule 3.24 the Company has not: (a) : suffered any material adverse change in the assets, properties, business, operations, prospects, net income or financial condition of the Company or any Basis therefor; changed its authorized or issued capital stock; granted any stock option or right to purchase shares of capital stock; issued any security convertible into such capital stock; or made any Equity Distributions; (b) ; incurred or become subject to, or agreed to incur or become subject to, any material obligation or Liability, except in the Ordinary Course of Business; (c) ; mortgaged or pledged any of its assets, tangible or intangible, except for Permitted Liens; (d) ; sold or transferred or agreed to sell or transfer any of its assets, or canceled or agreed to cancel any debts owed to it or any of its claims except in the Ordinary Course of Business; (e) ; suffered any extraordinary losses (as that term is defined by GAAP) or, except in the Ordinary Course of Business, waived any material rights; (f) ; terminated or agreed to terminate any material contract, agreement, license, or other instrument to which it is a party, except in the Ordinary Course of Business; (g) ; increased or agreed to increase the rate of compensation payable by it to any employee, whose compensation is determined other than by multiplying the number of hours worked by an hourly rate (a “"Salaried Employee”"), over the rate being paid or accrued to them as of the Interim Balance Sheet Date (other than increases granted to individual Salaried Employees for merit, length of service, change in position or responsibility or other reasons specific to individual Salaried Employees and not generally to a class or group of Salaried Employees); (h) Date; made or agreed to make any accrual or arrangement for or payment of bonuses or special compensation of any kind to any of its Salaried Employees Employees; or made any general increase in the salary or bonus payable or to become payable by the Company to any Employee other than Salaried Employees (other than increases granted to individual Employees employees for merit, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereof); (i) ; entered into any agreement, written or oral, providing for the employment of any Employee or any severance or termination benefits payable or to become payable by the Company to any Employee; (j) ; taken any action which would have constituted a breach of any negative covenant of the Seller set forth in Article V or VI if such negative covenant had applied since the Interim Balance Sheet Date; or (k) or suffered any shortages of materials or supplies or any casualty that individually or in the aggregate has had or would could reasonably be expected to have a Material Adverse Effect.

Interim Operations. Except as set forth on Schedule 3.23From the date of this Agreement until the earlier of the Funding Date or the termination of this Agreement, since unless the Interim Balance Sheet Dateprior written consent of the Investors shall have been obtained, the Company has operated only in covenants and agrees that it will not do or agree or commit to do, or permit any of its Subsidiaries to do or agree or commit to do, any of the Ordinary Course of Business and has notfollowing: (a) changed its authorized amend the Company’s Certificate of Incorporation or issued capital stock; granted bylaws or the certificate of incorporation or bylaws (or corresponding organizational documents) of any stock option or right to purchase shares of capital stock; issued any security convertible into such capital stock; or made any Equity Distributions;Company Subsidiaries, (b) incurred or become subject to, or agreed to incur or become subject toguarantee any additional Indebtedness except for (i) intercompany Indebtedness, any material obligation or Liability, except (ii) borrowings under the Company’s credit facilities as in effect on the date of this Agreement and overnight borrowing in the Ordinary Course ordinary course of Business;business consistent with past practice. (c) mortgaged repurchase, redeem, or pledged otherwise acquire or exchange, directly or indirectly, any shares, or any securities convertible into any shares, of the capital stock of the company or any of its assetsSubsidiaries, tangible or intangiblemake any other distribution in respect of the Company’s capital stock, except for Permitted Liensrepurchases made in connection with any Benefit Plan or cash dividends on Common Stock not to exceed $0.01 per share for each fiscal quarter; (d) sold or transferred or agreed to sell or transfer any of its assetsexcept for this Agreement, or canceled pursuant to the exercise of stock options outstanding as of the date hereof and pursuant to and in accordance with the Benefit Plans as in existence on the date hereof, issue, sell, pledge, encumber, authorize the issuance of, enter into any contract to issue, sell, pledge, encumber, or agreed authorize the issuance of, or otherwise permit to cancel become outstanding, any debts owed to it additional shares of Common Stock or any other capital stock of the Company or any Subsidiaries, or any stock appreciation rights, or any option, warrant, or other right in respect of the capital stock of the Company or any of its claims except in the Ordinary Course of BusinessSubsidiaries; (e) suffered adjust, split, combine or reclassify any extraordinary losses capital stock of the Company or any of its Subsidiaries or issue or authorize the issuance of any other securities in respect of or in substitution for shares of Common Stock or any other capital stock of the Company or any of its Subsidiaries, or sell, lease, mortgage, permit any Lien (as that term is defined by GAAP) orother than, except in the Ordinary Course case of Businessthe following subclause (ii), waived Permitted Liens that are not material individually or in the aggregate), or otherwise dispose of or otherwise encumber (i) any shares of capital stock of any Company Subsidiaries or (ii) any material rightsasset other than in the ordinary course of business consistent with past practice; (f) terminated purchase any securities or agreed to terminate make any material contractinvestment, agreementeither by purchase of stock or securities, licensecontributions to capital, asset transfers, or purchase of any assets, in any Person other instrument than a Company Subsidiary, or otherwise acquire direct or indirect control over any Person, other than in the ordinary course of business consistent with past practice; (i) other than as required by the agreements executed in connection with this Agreement and identified on the Disclosure Schedule, grant any increase in compensation or benefits to which it is a partythe employees or officers of the Company or any of its Subsidiaries, except for merit-based salary increases for employees other than officers in the ordinary course in accordance with past practice; (ii) pay any (x) severance or termination pay or (y) any bonus, in either case other than as required by written severance policies or written contracts in effect on the date of this Agreement or in the ordinary course of business consistent with past practice; (iii) enter into or amend any severance agreements with employees or officers of the Company or any of its Subsidiaries; (iv) grant any increase in fees or other increases in compensation or other benefits to directors of the Company or any of its Subsidiaries except in the Ordinary Course ordinary course of Business; business consistent with past practice; or (gv) increased waive any stock repurchase rights, accelerate, amend or agreed to increase change the rate period of compensation payable by it to exercisability of any employee, whose compensation is determined other than by multiplying the number of hours worked by an hourly rate (a “Salaried Employee”), over the rate being paid or accrued to them as of the Interim Balance Sheet Date (other than increases granted to individual Salaried Employees for merit, length of service, change in position or responsibility stock options or other reasons specific to individual Salaried Employees and not generally to equity rights or restricted stock, or reprice any stock options or other equity rights granted under a class Benefit Plan or group of Salaried Employees)authorize cash payments in exchange for any stock options or other equity rights; (h) made enter into or agreed to make amend any accrual employment contract between the Company or arrangement for or payment of bonuses or special compensation of any kind to any of its Salaried Employees or made Subsidiaries and any general increase in the salary or bonus payable or to become payable by Person that the Company or such Subsidiary does not have the unconditional right to any Employee other than Salaried Employees terminate without liability (other than increases granted to individual Employees liability for merit, length of service, change in position or responsibility or other reasons applicable to specific Employees and not generally to a class or group thereofservices already rendered); (i) entered into adopt any agreementnew Benefit Plan or terminate or withdraw from, written or oralmake any change in or to, providing for any Benefit Plans other than any such change that is required by law or that, in the employment opinion of counsel, is necessary or advisable to maintain the tax qualified status of any Employee such plan, or make any severance distributions from such Benefit Plans, except as required by law, the terms of such Benefit Plans as in effect on the date hereof or termination benefits payable or to become payable by in the Company to any Employeeordinary course of business consistent with past practice; (j) taken make any action which would have constituted significant change in any accounting methods or systems of internal accounting controls, except as required by GAAP; (k) make, change or revoke any material Tax election, (ii) change any of its methods of accounting for Tax purposes, (iii) settle or compromise any material Tax liability or any Tax disputes, claims, audits, examinations, or other proceedings, (iv) file any material amended Tax return or (v) enter into a breach “closing agreement” described in Section 7121 of the Code (or any corresponding or comparable provision of state, local or foreign Law); (l) commence any litigation other than in the ordinary course of business consistent with past practice, or settle any litigation (i) involving any liability to the Company or any of its Subsidiaries for money damages in excess of $500,000 or materially restricting or otherwise affecting the business or operations of the Company or any of its Subsidiaries or (ii) relating to the transactions contemplated hereby; (m) except in the ordinary course of business consistent with past practice, enter into, modify, amend or terminate any Company Significant Agreement or waive, release, compromise or assign any material rights or claims; (n) enter into any new line of business or change in any material respect its lending, investment, risk and asset-liability management, interest rate or fee pricing with respect to depository accounts, hedging and other material banking or operating policies except as required by law or by rules or policies imposed by a Governmental Entity; (o) make or commit to make any capital expenditure, except (i) capital expenditures of the Company and its Subsidiaries in the ordinary course of business on information technology used in the ordinary course of business not exceeding $5,000,000; and (ii) capital expenditures of the Company and its Subsidiaries in the ordinary course of business (other than capital expenditures described in the foregoing clause (i)) not exceeding $3,000,000; (p) except as required by law or applicable regulatory authorities, make any material changes in its credit administration policies or loan rating system, or otherwise make any material changes to its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loans; (q) purchase or lease any real property in respect of any negative covenant branch or other facility, or, without previously notifying and consulting with Investors, make any application to open, relocate or close, or open, relocate or close any branch or other facility; (r) sell, transfer or otherwise dispose of Seller set forth any property or assets that are, individually or in Article V if such negative covenant had applied since the Interim Balance Sheet Dateaggregate, material, except for the sale of, in each case in the ordinary course of business, (i) Small Business Administration Loans, (ii) OREO and (iii) loans through the Mortgage Purchasing Department of the Bank; (s) without previously notifying and consulting with Investors, except for Loans or commitments for Loans that have previously been approved by the Bank prior to the date of this Agreement, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating in excess of $1,000,000, or amend or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its affiliates) in excess of $1,000,000; (t) fail to comply with Regulatory Agreements or the C&D Order; or (ku) suffered agree to take, make any shortages commitment to take, or adopt any resolutions of materials or supplies or the Company’s Board of Directors in support of, any casualty that individually or in of the aggregate has had or would reasonably be expected to have a Material Adverse Effectactions prohibited by this Section 3.1.