Common use of No Material Change Clause in Contracts

No Material Change. Since June 30, 2004 and except as described in or specifically contemplated by the Private Placement Memorandum: (i) neither the Company nor any of its Subsidiaries has incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction not in the ordinary course of business or which could reasonably be expected to have a Material Adverse Effect; (ii) neither the Company nor any of its Subsidiaries has sustained any material loss or damage to its physical properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of its Subsidiaries has paid or declared any dividends or other distributions with respect to its capital stock, and neither the Company nor any of its Subsidiaries has defaulted in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or any increase in indebtedness material to the Company or any of its Subsidiaries.

No Material Change. Since June 30December 31, 2004 2002, and except as described in or specifically contemplated by the Private Placement Memorandum: Memorandum (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company and its Subsidiaries; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or any increase indebtedness not incurred in indebtedness the ordinary course of business that is material to the Company or any of and its Subsidiaries, taken as a whole; and (v) there has not been any other event which has caused a Material Adverse Effect.

No Material Change. Since June 30, 2004 2004, and except as ------------------ described in or specifically contemplated by the Private Placement Memorandum: Memorandum (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company and its Subsidiaries; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s 's Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, or any increase indebtedness not incurred in indebtedness the ordinary course of business that is material to the Company or any of and its Subsidiaries, taken as a whole; and (v) there has not been any other event which has caused a Material Adverse Effect.

No Material Change. Since June 30Except as disclosed in the Company Documents as filed with the Commission, 2004 and except as described in or specifically contemplated by the Private Placement Memorandum: since March 31, 2005 (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company and its Subsidiaries; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and Securities hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or any increase indebtedness not incurred in indebtedness the ordinary course of business that is material to the Company or any of and its Subsidiaries, taken as a whole; and (v) there has not been any other event which has caused a Material Adverse Effect.

No Material Change. Since June 30December 31, 2004 2005, and except as described in or specifically contemplated by the Private Placement Memorandum: , (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction that is not in the ordinary course of business or which that could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither none of the Company nor or any of its Subsidiaries has defaulted Subsidiary is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares and Warrants hereunder and shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or any increase in indebtedness material to the Company or its Subsidiaries (other than in the ordinary course of business and any of its Subsidiariesrequired scheduled payments); and (v) there has not occurred any event that has caused or could reasonably be expected to cause a Material Adverse Effect.

No Material Change. Since June 3029, 2004 2003 and except as described specifically disclosed in the Company’s Quarterly Report on Form 10-Q for the quarter ended June 29, 2003 or specifically contemplated the Company’s Preliminary Proxy Statement filed on July 3, 2003, as amended (excluding in each case all exhibits thereto and any documents incorporated therein by the Private Placement Memorandum: reference), (i) neither the Company nor any of its Subsidiaries Subsidiary has incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral verbal or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company or any Subsidiary; (ii) neither the Company nor any of its Subsidiaries Subsidiary has sustained any material loss or damage to interference with its physical respective businesses or properties or assets from fire, flood, windstorm, accident or , other calamity or otherwise whether or not covered by insurance; (iii) neither the Company nor any of its Subsidiaries has not paid or declared any dividends or other distributions with respect to its capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted Subsidiary is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder Securities under the Agreements and shares or options issued pursuant to employee equity incentive plans the Plans or purchase plans approved by upon the Company’s Board exercise of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directorswarrants outstanding on such date, or any increase in indebtedness material to the Company (other than in the ordinary course of business); (v) there has not been any Material Adverse Effect; and (vi) there has not been any material adverse change in the financial condition, properties, business or any results of operations of the Company and its SubsidiariesSubsidiaries considered as one enterprise.

No Material Change. Since June 30December 31, 2004 2005, and except as described in the Information Memorandum or specifically contemplated by in the Private Placement Memorandum: Parent’s filings with the Commission available on XXXXX at least five Business Days prior to the date hereof, (i) neither the Company nor any of its Subsidiaries has Issuer, the Parent and their respective subsidiaries have not incurred any material liabilities or obligations, indirect, indirect or contingent, or entered into any material oral or written agreement or other material transaction which is not in the ordinary course of business or which could reasonably be expected to have a Material Adverse Effectbusiness; (ii) neither the Company nor any of its Subsidiaries has Issuer, the Parent and their respective subsidiaries have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of its Subsidiaries Parent has not paid or declared any dividends or other distributions with respect to its capital stock, other than with respect to the Preferred Stock, and neither the Company Issuer, the Parent nor any of its Subsidiaries has defaulted their respective subsidiaries is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any material change in the capital stock of the Company Issuer, the Parent or of any of its Subsidiaries their respective subsidiaries other than the sale of the Shares hereunder and Securities hereunder, issuance of shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the CompanyParent’s Board of Directors and Directors, repurchases of shares or options pursuant to repurchase plans already approved by the CompanyParent’s Board of Directors, or any increase in indebtedness material and issuances of shares pursuant to the Company exercise of warrants or upon conversion of Preferred Stock, in each case outstanding on December 31, 2005; and (v) there has not been any of its Subsidiariesother event which has caused or could reasonably be expected to have a Material Adverse Effect.

No Material Change. Since June 30December 31, 2004 2001 and except as ------------------ described in or specifically contemplated by the Private Placement Memorandum: ; (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral verbal or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings or prospects of the Company and its Subsidiaries; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to interference with its physical businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither except as described in the Private Placement Memorandum or Public Filings, the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s 's Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, or any increase in indebtedness material to the Company or any of its SubsidiariesSubsidiaries (other than in the ordinary course of business); and (v) there has not been any other event or change that would have a Material Adverse Effect.

No Material Change. Since June 30December 31, 2004 2003, and except as described in or specifically contemplated by the Private Placement Memorandum: Company's filings with the Commission made at least two (2) business days prior to the date hereof, (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, indirect or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effect; material reduction in the future earnings of the Company and its Subsidiaries, (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; , (iii) neither the Company nor any of its Subsidiaries has not paid or declared any dividends or other distributions with respect to its capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and , (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and hereunder, the issuance of shares upon the exercise of outstanding warrants, the issuance of shares or options issued pursuant to employee equity incentive plans or employee stock purchase plans approved by the Company’s 's Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, or any increase indebtedness not incurred in indebtedness the ordinary course of business that is material to the Company or any of and its Subsidiaries, taken as a whole, and (v) there has not been any other event which has caused a Material Adverse Effect.

No Material Change. Since June 30December 31, 2004 2004, and except as described in the Information Memorandum or specifically contemplated by in the Private Placement Memorandum: Parent’s filings with the Commission available on XXXXX at least five Business Days prior to the date hereof, (i) neither the Company nor any of its Subsidiaries has Issuer, the Parent and their respective subsidiaries have not incurred any material liabilities or obligations, indirect, indirect or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have a Material Adverse Effectbusiness; (ii) neither the Company nor any of its Subsidiaries has Issuer, the Parent and their respective subsidiaries have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of its Subsidiaries Parent has not paid or declared any dividends or other distributions with respect to its capital stock, other than with respect to the Preferred Stock, and neither the Company Issuer, the Parent nor any of its Subsidiaries has defaulted their respective subsidiaries is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) except for the warrants to purchase shares of the Common Stock issued on or about April 22, 2005, on or about July 22, 2005 and on or about August 30, 2005, there has not been any change in the capital stock of the Company Issuer, the Parent or of any of its Subsidiaries their respective subsidiaries other than the sale of the Shares hereunder and Units hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the CompanyParent’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the CompanyParent’s Board of Directors, ; and (v) there has not been any other event which has caused or any increase in indebtedness material could reasonably be expected to the Company or any of its Subsidiarieshave a Material Adverse Effect.

No Material Change. Since June 30March 31, 2004 2002 and except as described in or specifically contemplated by the Private Placement Memorandum: Memorandum (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company and its Subsidiaries; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s 's Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, or any increase indebtedness not incurred in indebtedness the ordinary course of business that is material to the Company or any of and its Subsidiaries, taken as a whole; and (v) there has not been any other event which has caused a Material Adverse Effect.

No Material Change. Since June 30, 2004 2005, and except as described in or specifically contemplated by the Private Placement Memorandum: Company filings with the SEC, (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction that is not in the ordinary course of business or which that could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither none of the Company nor or any of its Subsidiaries has defaulted Subsidiary is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or any increase in indebtedness material to the Company or its Subsidiaries (other than in the ordinary course of business and any of its Subsidiariesrequired scheduled payments); and (v) there has not occurred any event that has caused or could reasonably be expected to cause a Material Adverse Effect.

No Material Change. Since June Except as set forth on Schedule 4.10, since October 30, 2004 and except as described in or specifically contemplated by the Private Placement Memorandum: 2005 (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company and its Subsidiaries; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, or any increase indebtedness not incurred in indebtedness the ordinary course of business that is material to the Company and its Subsidiaries, taken as a whole; and (v) there has not been any change in the accounting principles applied by the Company or any of its SubsidiariesSubsidiaries in the preparation of the financial statements of the Company and its Subsidiaries other than changes in accordance with generally accepted accounting principles. Since October 30, 2005, there has not been any event which has caused a Material Adverse Effect.

No Material Change. Since June 30February 29, 2004 2004, and except as described in or specifically contemplated by the Private Placement Memorandum: Disclosure Documents (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company and its Subsidiaries; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or and (v) there has not been any increase in indebtedness material to the Company or any of its Subsidiariesother event which has caused a Material Adverse Effect.

No Material Change. Since June 30August 25, 2004 2001 and except as described in or specifically contemplated by the Private Placement Memorandum: (i) neither the Company nor any of its Subsidiaries has incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral verbal or written agreement or other transaction not in the ordinary course of business or which could reasonably be expected to have a Material Adverse Effect; (ii) neither the Company nor any of its Subsidiaries has sustained any material loss or damage to interference with its physical businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of its Subsidiaries has paid or declared any dividends or other distributions with respect to its capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s 's Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, or any increase in indebtedness material to the Company or any of its Subsidiaries; and (v) there has not been any other event or change that would have a Material Adverse Effect.

No Material Change. Since June 30July 31, 2004 2006, and except as described disclosed in or specifically contemplated by the Private Placement MemorandumSchedule of Exceptions: (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction contingent which are not in the ordinary course of business or which could would reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect; (ii) neither the Company nor any Subsidiary has entered into any transaction which is not in the ordinary course of business; (iii) the Company and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident accident, or other calamity not covered by insurancecalamity; (iiiiv) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (ivv) (a) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Purchased Shares hereunder and Warrants hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, in each case, which plans have been disclosed in the Disclosure Documents, and (b) there has not been any incurrence of indebtedness not incurred in the ordinary course of business or any increase in indebtedness that is material to the Company or any of and its Subsidiaries, taken as a whole; and (vi) there has not been any other event which has caused or would reasonably be expected to cause a Material Adverse Effect.

No Material Change. Since June 30, 2004 and except Except as described disclosed in or specifically contemplated by the Private Placement Memorandum: , since March 31, 2005 (i) neither the Company nor any of and its Subsidiaries has Subsidiary have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction transaction, in each case which is not in the ordinary course of business or which could would reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company and its Subsidiary; (ii) neither the Company nor any of and its Subsidiaries has Subsidiary have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has Subsidiary have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted Subsidiary is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries Subsidiary other than the sale of the Shares hereunder and Securities hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s 's Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, or any increase indebtedness, other than pursuant to agreements with Silicon Valley Bank disclosed in indebtedness the Private Placement Memorandum, not incurred in the ordinary course of business that is material to the Company or and its Subsidiary, taken as a whole; and (v) there has not been any of its Subsidiariesother event which has caused a Material Adverse Effect.

No Material Change. Since June 30, 2004 2005 and except as described in or specifically contemplated by the Private Placement Memorandum: (i) neither Section 4.10 of the Company nor any of Disclosure Schedule, (a) the Company and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, indirect or contingent, or entered into any material oral or written agreement or other transaction transaction, in each case, which is not in the ordinary course of business or which could would reasonably be expected to have a Material Adverse Effect; (iib) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical properties or assets from fire, flood, windstorm, accident or other calamity not covered by insuranceinsurance which would reasonably be expected to have a Material Adverse Effect; (iiic) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (ivd) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and Securities in the Offering, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or ; (e) the Company and its Subsidiaries have not incurred any increase in indebtedness outside the ordinary course of business that is material to the Company or any of and its Subsidiaries, taken as a whole; and (f) there has not been any other event which has caused or is reasonably expected to result in a Material Adverse Effect.

No Material Change. Since June September 30, 2004 2003 and except as described in or specifically contemplated by the Private Placement Memorandum: (i) neither the Company nor any of its Subsidiaries has incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction not in the ordinary course of business or which could reasonably be expected to have a Material Adverse Effect; (ii) neither the Company nor any of its Subsidiaries has sustained any material loss or damage to its physical properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of its Subsidiaries has paid or declared any dividends or other distributions with respect to its capital stock, and neither the Company nor any of its Subsidiaries has defaulted in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or any increase in indebtedness material to the Company or any of its Subsidiaries.

No Material Change. Since June 30December 31, 2004 2005, and except as described in or specifically contemplated by the Private Placement Memorandum: SEC Reports, (i) neither the Company nor any of its Subsidiaries subsidiaries has incurred any material liabilities or obligations, indirectdirect, indirect or contingent, or entered into any material oral verbal or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company or its subsidiaries; (ii) neither the Company nor any of its Subsidiaries subsidiaries has sustained any material loss or damage to interference with its physical businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of its Subsidiaries subsidiaries has paid or declared any dividends or other distributions with respect to its capital stock, and neither the Company nor any of its Subsidiaries has defaulted subsidiaries is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or any increase in indebtedness material to the Company (other than in the ordinary course of business; (v) there has been no Material Adverse Change; and (vi) there has not occurred any other event and, to the Company’s knowledge, there has arisen no set of circumstances required by the Exchange Act and the Rules and Regulations to be disclosed in a periodic or any of its Subsidiariesother report thereunder which has not been so disclosed as fairly and accurately described therein.

No Material Change. Since June 30December 31, 2004 2002, and except as described in or specifically contemplated by the Private Placement Memorandum: Company’s filings with the Commission made at least two (2) business days prior to the date hereof, (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, indirect or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effect; material reduction in the future earnings of the Company and its Subsidiaries, (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; , (iii) neither the Company nor any of its Subsidiaries has not paid or declared any dividends or other distributions with respect to its capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and , (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and Units hereunder, shares or options issued pursuant to employee equity incentive plans or employee stock purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or any increase indebtedness not incurred in indebtedness the ordinary course of business that is material to the Company or any of and its Subsidiaries, taken as a whole, and (v) there has not been any other event which has caused a Material Adverse Effect.

No Material Change. Since June September 30, 2004 and except as described in or specifically contemplated by the Private Placement Memorandum: 1999 (i) neither the Company ------------------ nor any of its Subsidiaries has have incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral verbal or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a material reduction in the future earnings of the Company or its Subsidiaries or in a Material Adverse Effect; (ii) neither the Company nor any of its Subsidiaries has have sustained any material loss or damage to interference with its physical businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of its Subsidiaries has have paid or declared any dividends or other distributions with respect to its capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the issuance of capital stock in connection with the acquisition of Allelix Biopharmaceuticals Inc., the sale of the Shares hereunder and shares or options issued pursuant to exercise of outstanding warrants or employee equity incentive plans or purchase and director stock option plans approved by the Company’s Board of Directors and repurchases of shares 's or options pursuant to repurchase plans already approved by the Company’s such Subsidiaries' Board of Directors, as the case may be, or any increase in indebtedness material to the Company or any of its SubsidiariesSubsidiaries (other than in the ordinary course of business); and (v) there has not been a change that would result in a Material Adverse Change.

No Material Change. Since June 30, 2004 and except Except as described disclosed in or specifically contemplated by the Private Placement Memorandum: , since March 31, 2005 (i) neither the Company nor any of and its Subsidiaries has Subsidiary have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction transaction, in each case which is not in the ordinary course of business or which could would reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company and its Subsidiary; (ii) neither the Company nor any of and its Subsidiaries has Subsidiary have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has Subsidiary have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted Subsidiary is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries Subsidiary other than the sale of the Shares hereunder and Securities hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or any increase indebtedness, other than pursuant to agreements with Silicon Valley Bank disclosed in indebtedness the Private Placement Memorandum, not incurred in the ordinary course of business that is material to the Company or and its Subsidiary, taken as a whole; and (v) there has not been any of its Subsidiariesother event which has caused a Material Adverse Effect.

No Material Change. Since June 30December 28, 2004 2002, and except as described in or specifically contemplated by the Private Placement Memorandum: Memorandum or in the Company's filings with the Securities and Exchange Commission, (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company and its Subsidiaries; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of its Subsidiaries has not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s 's Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, or any increase indebtedness not incurred in indebtedness the ordinary course of business that is material to the Company or any of and its Subsidiaries, taken as a whole; and (v) there has not been any other event which has caused a Material Adverse Effect.

No Material Change. Since June 30December 31, 2004 2003, and except as described in or specifically contemplated by the Private Placement Memorandum: Memorandum (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could would reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company and its Subsidiaries; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s 's Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, or any increase indebtedness not incurred in indebtedness the ordinary course of business that is material to the Company or any of and its Subsidiaries, taken as a whole; and (v) there has not been any other event which has caused a Material Adverse Effect.

No Material Change. Since June September 30, 2004 and except as described in or specifically contemplated by the Private Placement Memorandum: 2005, (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company and its Subsidiaries; (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to its physical interference with their businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its their capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s 's Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, or any increase indebtedness, other than the sale of the Debentures and Warrants, not incurred in indebtedness the ordinary course of business that is material to the Company or any of and its Subsidiaries, taken as a whole; and (v) there has not been any other event which has caused a Material Adverse Effect.

No Material Change. Since June 30December 31, 2004 and except as specifically described in or specifically contemplated by the Private Placement MemorandumSecurities Filings: (i) neither there has been no event, occurrence or development that has had or that could result in a Material Adverse Effect, (ii) the Company nor any of its Subsidiaries has not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction not in the ordinary course of business or which could reasonably be expected to have a Material Adverse Effect; (iiiii) neither the Company nor any of its Subsidiaries has not sustained any material loss or damage to its physical properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iiiiv) neither the Company nor any of its Subsidiaries has not paid or declared any dividends or other distributions with respect to its capital stock, and neither the Company nor any of its Subsidiaries has not defaulted in the payment of principal or interest on any outstanding debt obligations, and the Company has not redeemed or made any agreements to purchase or redeem any shares of its capital stock; and (ivv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares Securities hereunder and shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or any increase in indebtedness material to the Company and (vi) the Company has not altered its method of accounting or any the identity of its Subsidiariesauditors, except as disclosed in its Securities Filings.

No Material Change. Since June 30December 31, 2004 2000 and except as described in or specifically contemplated by the Private Placement Memorandum: , (i) neither the Company nor any of and its Subsidiaries has have not incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral verbal or written agreement or other transaction which is not in the ordinary course of business or (other than the agreement with Tiburon Inc. pursuant to which could reasonably Tiburon, Inc. will be expected to have merged with and into a Material Adverse Effectwholly-owned subsidiary of the Company); (ii) neither the Company nor any of and its Subsidiaries has have not sustained any material loss or damage to interference with its physical businesses or properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of and its Subsidiaries has have not paid or declared any dividends or other distributions with respect to its capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Company Shares hereunder and hereunder, shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s 's Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s 's Board of Directors, or any increase in indebtedness material to the Company or any of its SubsidiariesSubsidiaries (other than in the ordinary course of business, or arising in connection with the Company's agreement with Tiburon, Inc., which have been disclosed by the Company in the Private Placement Memorandum); and (v) any other event or change that would have a Material Adverse Effect.

No Material Change. Since June 3029, 2004 2003 and except as described specifically disclosed in the Company’s Quarterly Report on Form 10-Q for the quarter ended June 29, 2003 or specifically contemplated the Company’s Preliminary Proxy Statement filed on July 3, 2003, as amended (excluding in each case all exhibits thereto and any documents incorporated therein by the Private Placement Memorandum: reference), (i) neither the Company nor any of its Subsidiaries Subsidiary has incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral verbal or written agreement or other transaction which is not in the ordinary course of business or which could reasonably be expected to have result in a Material Adverse Effectmaterial reduction in the future earnings of the Company or any Subsidiary; (ii) neither the Company nor any of its Subsidiaries Subsidiary has sustained any material loss or damage to interference with its physical respective businesses or properties or assets from fire, flood, windstorm, accident or accident, other calamity or otherwise whether or not covered by insurance; (iii) neither the Company nor any of its Subsidiaries has not paid or declared any dividends or other distributions with respect to its capital stock, stock and neither the Company nor any of its Subsidiaries has defaulted Subsidiary is in default in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder Securities under the Agreements and shares or options issued pursuant to employee equity incentive plans the Plans or purchase plans approved by upon the Company’s Board exercise of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directorswarrants outstanding on such date, or any increase in indebtedness material to the Company (other than in the ordinary course of business); (v) there has not been any Material Adverse Effect; and (vi) there has not been any material adverse change in the financial condition, properties, business or any results of operations of the Company and its SubsidiariesSubsidiaries considered as one enterprise.

No Material Change. Since June 30March 31, 2004 2003 and except as described in or specifically contemplated by the Private Placement Memorandum: (i) neither the Company nor any of its Subsidiaries has incurred any material liabilities or obligations, indirect, or contingent, or entered into any material oral or written agreement or other transaction not in the ordinary course of business or which could reasonably be expected to have a Material Adverse Effect; (ii) neither the Company nor any of its Subsidiaries has sustained any material loss or damage to its physical properties or assets from fire, flood, windstorm, accident or other calamity not covered by insurance; (iii) neither the Company nor any of its Subsidiaries has paid or declared any dividends or other distributions with respect to its capital stock, and neither the Company nor any of its Subsidiaries has defaulted in the payment of principal or interest on any outstanding debt obligations; and (iv) there has not been any change in the capital stock of the Company or of any of its Subsidiaries other than the sale of the Shares hereunder and shares or options issued pursuant to employee equity incentive plans or purchase plans approved by the Company’s Board of Directors and repurchases of shares or options pursuant to repurchase plans already approved by the Company’s Board of Directors, or any increase in indebtedness material to the Company or any of its Subsidiaries.