Common use of Agreements; Actions Clause in Contracts

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions to which any Group Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group Company in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregate, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 (a) Save for the agreements set out in Section 10.1 3.10(a) of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts Contracts or proposed transactions to which any Group Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group Company in excess of US$100,000 25,000 per annum or in excess of US$500,000 50,000 in the aggregate, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right Intellectual Property rights to or from any Group Company, other than from or to another Group Company or from a Founder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person Person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Knowledge of the Warrantors’ knowledge, by all the other parties thereto. There are are, to the Knowledge of the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 (b) The Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 25,000 or in excess of US$25,000 50,000 in the aggregate, (ii) made any loans or advances to any personPerson, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 Section 3.10, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 (c) No Group Company is a guarantor or indemnitor of any indebtedness of any other personPerson, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 of the Disclosure (a) Schedule (the “Material Agreements”3.9(a) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts sets forth all Contracts or proposed transactions to which any Group the Company is a party or by which it is bound (other than the Transaction Agreements and Contracts governing purchases of the Company’s services pursuant to the Company’s standard form customer agreement) that involve (i) obligations (contingent or otherwise) of, or payments to, any Group the Company in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate$150,000, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person Person or affect any Group that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iii) Contracts for the lease of real property or real property interests to or by the Company, (iv) indemnification Contracts for Indebtedness, (v) Contracts with any Governmental Body, (vi) the grant by any Group Person of a power of attorney, (vii) Contracts between the Company and any other Person wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, reimburse, hold harmless, guaranty or otherwise assume or incur any obligation or liability or provide a right of rescission with respect to infringements the Infringement by the Company or such other Person of proprietary rightsthe Intellectual Property of any third party; and (viii) any other Contract, the termination or breach of which would be, or would be reasonably expected to be material to the Company. (b) With respect to each such Contract required to be set forth on Schedule 3.7(f), Schedule 3.7(s) or Schedule 3.9(a) (collectively, the “Material Contracts”): (w) such Material Contract is legal, valid, binding, enforceable, to the Company’s Knowledge free and clear of any Lien, and in full force and effect on identical terms as set forth in the copies provided to Acquiror; (x) neither the Company, nor to the Company’s Knowledge, the other party(ies) thereto, is in breach or default is in breach or default or has threatened to breach or default, and no event has occurred, or will occur as a result of the transactions contemplated hereby, which with notice or lapse of time would constitute a breach or default, or permit termination, or acceleration, under such Material Contract; (y) neither the Company, nor to the Company’s Knowledge, the other party(ies) thereto, have repudiated or threatened in writing to repudiate any provision of such Material Contract, and there are is no agreementsdispute pending or, understandingsto the Company’s Knowledge, instrumentsthreatened under any such Material Contract; and (z) except as set forth on Schedule 3.9(b)(z) no such Material Contract would require consent for Acquiror to acquire the Company, contracts as contemplated by this Agreement, or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying operate the rights or obligations business of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreementas it is currently being operated. 10.2 The (c) Except as set forth on Schedule 3.9(c), the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capitalEquity Interests, and no Group Company has (iii) incurred any indebtedness for money borrowed Indebtedness or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregate$100,000, (iiiii) made any loans or advances to any personPerson, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iiiiv) other than in the ordinary course of the Company’s business, sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 subsections (c) and 10.2 (d) of this Schedule 5 Section 3.9, all indebtednessIndebtedness, liabilities, agreements, understandings, instruments, contracts Contracts and proposed transactions involving the same person or entity Person (including any other Persons the Company has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No (d) The no Group Company is a guarantor or indemnitor of any indebtedness Indebtedness of any other person, firm or corporation that is not a Group CompanyPerson. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save (a) Except for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions to which the Company or any Group Company Subsidiary is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, the Company or any Group Company Subsidiary in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate$200,000, (ii) the transfer or license of any patent, copyright, trademark, trade secret or other proprietary right to or from any Group Company, other than from or to another Group the Company or from a Founder to a Group Companyany Subsidiary, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Person that limit the Company’s or the Subsidiaries’ exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by the Company or any Group Company Subsidiary with respect to infringements of proprietary rights. (b) Except for the Transaction Documents and as set forth in Schedule 2.10(b), and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof Subsidiaries have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its share capitalcapital stock, and no Group Company has in any case which remains unpaid, (iii) incurred any indebtedness for money borrowed or incurred any other liabilities that remain outstanding individually in excess of US$10,000 $100,000 or in excess of US$25,000 $250,000 in the aggregate, (iiiii) made any loans or advances to any personPerson, other than ordinary advances for travel expenses and trade receivables in the ordinary course of businessbusiness expenses, or (iiiiv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreementbusiness. For the purposes of Sections 10.1 (a) and 10.2 (b) of this Schedule 5 Section 2.10, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person Person (including Persons the Company or entity any Subsidiary has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionsection. 10.3 No Group (c) The Company is and the Subsidiaries are not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group CompanyPerson. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for (i) Except in the agreements set out ordinary course of business or as disclosed in Section 10.1 of writing to the Disclosure Schedule (the “Material Agreements”) and the Transaction DocumentsBuyer, there are no other agreements, understandingsunderstandings (oral or written), instruments, contracts licenses, contracts, proposed transactions, judgments, orders, writs or proposed transactions decrees to which any Group the Company is a party or by which it or any of its properties is bound that involve may involve: (iA) obligations (contingent or otherwise) of, or payments to, any Group the Company in excess of US$100,000 per annum $50,000; (B) provisions restricting or in excess affecting the development, manufacture or distribution of US$500,000 in the aggregate, Company's products or services; or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (ivC) indemnification by any Group the Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation overt allegations infringement of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material AgreementIntellectual Property. 10.2 (ii) The Company has not not: (A) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its share capital, and no Group Company has capital stock; (iB) incurred any indebtedness, other than the Secured Convertible Debentures due December 31, 1999, ordinary trade indebtedness or as otherwise disclosed to the Buyer in writing, for money borrowed borrowed, individually or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregate, in excess of $50,000; (iiC) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, expenses; or (iiiD) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. business. (iii) For the purposes of Sections 10.1 and 10.2 of this Schedule 5 subsection (ii) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts amount of such subsection. 10.3 No Group (iv) The Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Certificate, or Bylaws, which materially and adversely affects the assets, properties, financial condition, operating results, prospects or business of the Disclosure Schedule Company as now conducted or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or personas proposed to be conducted.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions to which any Group Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group Company in excess of US$100,000 per annum or in excess of US$500,000 200,000 in the aggregate, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the knowledge of the Warrantors’ knowledge, by all the other parties thereto. There are to the knowledge of the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Save as set out in Section 10.2 of the Disclosure Schedule, the Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 100,000 or in excess of US$25,000 200,000 in the aggregate, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save (a) Except (i) for the agreements set out in Section 10.1 explicitly contemplated hereby; (ii) for stock options or shares of stock granted by the Company to the officers and directors of the Company and any of its Subsidiaries pursuant to the Plans; (iii) for employment letters, indemnification agreements and proprietary information and inventions agreements between the Company and any of its Subsidiaries and their respective officers and directors; and (iv) as set forth in the Disclosure Schedule (the “Material Agreements”) and the Transaction DocumentsSchedule, there are no other agreements, understandings or proposed transactions between the Company or any of its Subsidiaries and any of its officers, directors, or affiliates. (b) Except as set forth in the Disclosure Schedule and for the agreements or proposed transactions between the Company and any of its Subsidiaries set forth in foregoing subsection (a), there are no agreements, understandings, instruments, contracts or proposed transactions to which the Company or any Group Company Subsidiary is a party or by which it is bound that which involve (i) obligations (contingent or otherwise) of, or payments to, the Company or any Group Company in excess of US$100,000 per annum or Subsidiary in excess of US$500,000 (other than obligations of, or payments to, the Company or any Subsidiary arising from purchase or sale agreements entered into in the aggregateordinary course of business), (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group of the Company or from a Founder to a Group Companyany Subsidiary that was not entered into in the ordinary course of business, (iii) any other material agreement not specifically referred to herein or in the grant Transaction Documents that was not entered into the ordinary course of rights to manufacture, produce, assemble, license, marketbusiness, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by the Company or any Group Company Subsidiary with respect to infringements of proprietary rightsrights (other than indemnification obligations arising from purchase, and there are no agreementssale, understandings, instruments, contracts license agreements or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out development agreements entered into in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations ordinary course of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreementbusiness). 10.2 The (c) Except as set forth in the Disclosure Schedule or as disclosed in the Financial Statements, (i) the Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its share capitalcapital stock, and no Group (ii) neither the Company nor any Subsidiary has (i) incurred any indebtedness for borrowed money borrowed or that remains outstanding, (iii) the Company, on a consolidated basis, has not incurred any other liabilities (other than with respect to obligations incurred in the ordinary course of business) individually in excess of US$10,000 500,000 or in excess of US$25,000 $1,000,000 in the aggregate, (iiiv) neither the Company nor any Subsidiary has made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in expenses, which loans or advances remain outstanding, (v) neither the ordinary course of business, or (iii) Company nor any Subsidiary has sold, exchanged or otherwise disposed of any of its material assets or rights, and (vi) neither the Company nor any Subsidiary has, since the Statement Date, agreed to any of the foregoing other than the sale of its inventory as reflected in the ordinary course of business or otherwise envisaged in this Agreement. Transaction Documents. (d) For the purposes of Sections 10.1 subsections (b) and 10.2 of this Schedule 5 (c) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company or any Subsidiary has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionsubsections. 10.3 No Group (e) Neither the Company nor any Subsidiary is a guarantor party to or indemnitor of is bound by any indebtedness of contract, agreement or instrument, or subject to any other personrestriction under the Restated Certificate or the Company’s Bylaws, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 which to the knowledge of the Disclosure Schedule Company or in connection with this Agreement and the other Transaction Documentsany Subsidiary, no Group Company has engaged in the past three (3) months adversely affects in any discussion with any representative of any corporationmaterial respect its business as now conducted or as proposed to be conducted, partnership, trust, joint venture, limited liability company, association its properties or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or personits financial condition.

Agreements; Actions. 10.1 Save (a) The execution, delivery and performance of this Agreement and the Investor Rights Agreement, the authorization, issuance, sale and delivery of the Shares pursuant hereto and the consummation of the other transactions contemplated hereby and thereby, will not trigger any options, warrants, puts, calls or other rights of any kind (including conversion or preemptive rights and rights of first refusal) for the agreements set out in Section 10.1 purchase or acquisition from, sale to or exchange with, the Company or any of its Subsidiaries of any shares of any class or series of capital stock of the Disclosure Schedule Company or any of its Subsidiaries or other restrictions on the incidents of ownership or transfer of any such shares of capital stock created by statute (other than federal and state securities laws), the “Material Agreements”certificate of incorporation or bylaws of the Company or any of its Subsidiaries or any Contract to which the Company or any of its Subsidiaries is a party, by which any of them or their property is subject to or bound or of which either of them has any knowledge. (b) and the Transaction Documents, there There are no other agreementsContracts, understandingsproposed transactions, instrumentsjudgments, contracts decrees, orders, writs or proposed transactions injunctions to which the Company or any Group Company of its Subsidiaries is a party or by which it they are bound or by which any of their property is bound subject that may involve (i) Liabilities or other obligations (contingent or otherwise) of, or payments to, to the Company or any Group Company of its Subsidiaries in excess of US$100,000 per annum or in excess of US$500,000 in the aggregateof, $500,000, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right Intellectual Property Rights to or from the Company or any Group Companyof its Subsidiaries, other than from or such licenses to another Group the Company or any of its Subsidiaries (a) arising from a Founder the purchase by either of them of "off the shelf" standard products or (b) that are not material to a Group Companythe business now conducted or proposed to be conducted by either of them, (iii) provisions restricting or affecting the grant development, marketing, sale or delivery of rights to manufacture, produce, assemble, license, market, the products or sell services of the Company or any of its products to any other person Subsidiaries or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by the Company or any Group Company of its Subsidiaries with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of Intellectual Property Rights. (c) Neither the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of nor any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate its Subsidiaries has been received in respect of any Material Agreement. 10.2 The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its share capitalcapital stock, and no Group Company has (iii) incurred created, incurred, assumed or guaranteed any indebtedness for money borrowed Indebtedness or incurred any other liabilities Liabilities individually in excess of US$10,000 or $250,000 or, in the case of Indebtedness and/or Liabilities individually less than $250,000, in excess of US$25,000 $500,000 in the aggregate, (iiiii) made any loans or advances to any personPerson, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iiiiv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. and consistent with past practice. (d) For the purposes of Sections 10.1 subsections (b) and 10.2 of this Schedule 5 (c) above, all indebtednessIndebtedness, liabilitiesLiabilities, agreements, understandings, instruments, contracts Contracts and proposed transactions involving the same person or entity Person (including Persons the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionsubsections. 10.3 No Group (e) Neither the Company nor any of its Subsidiaries is a guarantor party to, or indemnitor bound by, any Contract, or subject to any restriction under its certificate of any indebtedness of any other personincorporation or bylaws, firm that materially and adversely affects its business as now conducted or corporation that is not as proposed to be conducted, its properties or its financial condition taken as a Group Companywhole. 10.4 Save (f) Except as set out forth in Section 10.4 2.12(f) of the Disclosure Schedule or in connection with this Agreement and of Exceptions, neither the other Transaction Documents, no Group Company nor any of its Subsidiaries has engaged in the past three (3) 6 months in any discussion (i) with any representative of any corporationPerson regarding the consolidation or merger of it with or into any such Person, partnership(ii) with any Person regarding the sale, trust, joint venture, limited liability company, association conveyance or other entity, or any individual, regarding (i) a sale disposition of all or substantially all of such Group Company’s assets, its assets or a transaction or series of related transactions in which more than 50% of the voting power of the Company or any of its Subsidiaries is disposed of or (iiiii) regarding any mergerother form of acquisition, consolidation liquidation, dissolution or other business combination transaction winding up of such Group the Company with or into another corporation, entity or personany of its Subsidiaries.

Agreements; Actions. 10.1 Save (a) Except for agreements explicitly contemplated hereby or by the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Related Agreements”) and the Transaction Documents, there are no other agreements between the Company and any of its officers, directors, affiliates or any affiliate thereof. (b) Set forth on the Schedule of Exceptions is a list of all agreements, understandings, instruments, contracts contracts, proposed transactions, judgments, orders, writs or proposed transactions decrees to which any Group the Company is a party or to its knowledge by which it is bound that which may involve (i) obligations (contingent or otherwise) of, or payments to, any Group the Company in excess of US$100,000 per annum One Hundred Thousand Dollars ($100,000) (the "Dollar Threshold) (other than obligations of, or in excess of US$500,000 payments to, the Company arising from purchase agreements entered into in the aggregateordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, the Company (other than licenses arising from the purchase of "off the shelf" or other standard products). The agreements or other documents referenced in this Section 3.7(b) are referred to another Group herein as the "Company or from a Founder to a Group Company, Contracts." (iiic) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its share capitalcapital stock, and no Group Company has (iii) incurred any indebtedness for money borrowed or incurred any other liabilities (other than with respect to indebtedness and other obligations incurred in the ordinary course of business individually not in excess of US$10,000 or in excess of US$25,000 in the aggregateDollar Threshold), (iiiii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of businessexpenses, or (iiiiv) sold, exchanged exchanged, or otherwise disposed of any of its assets or rights, other than the sale of its products or inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionbusiness. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group (d) The Company has engaged in the past three not entered into any letters of intents or binding agreements: (3i) months in any discussion with any representative of any corporationcorporation or corporations, partnership, trust, joint venture, limited liability company, association or other entitybusiness entity or any individual (each an "Acquisition Party") regarding the consolidation or merger of the Company, or any individualproposed subsidiary or affiliate of the Company with, regarding (i) a sale of all or substantially all into, any such Acquisition Party or for the consolidation or merger of such Group Company’s assetsAcquisition Party, (ii) with any Acquisition Party regarding the sale, conveyance or disposition a significant portion of the assets of the Company or any Acquisition Party, or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company or any Acquisition Party is disposed of, or (iiiii) regarding any mergerother form of acquisition, consolidation liquidation, dissolution or winding up of the Company or any Acquisition Party. (e) The Schedule of Exceptions sets forth a list of all claims (other business combination transaction than invoices received in the ordinary course of business), threatened against the Company under each Company Contract to the extent such Group Company with claims have had, or into another corporationwould reasonably be expected to have, entity or persona material adverse effect on the Company.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions to which any Group Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group Company in excess of US$100,000 per annum 250,000 with respect to one single transaction or in excess of US$500,000 in the aggregatewith respect to a series of related transactions, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the knowledge of the Warrantors’ knowledge’, by all the other parties thereto. There are to the knowledge of the Warrantors’ knowledge’, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Save as set out in Section 10.2 of the Disclosure Schedule and set forth in the Financial Statements, the Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregate, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for the agreements (a) Except as set out forth in Section 10.1 3.11(a) of the Company Disclosure Schedule (the “Material Agreements”) and the Transaction DocumentsSchedule, there are no other agreements, understandings or proposed transactions between the Company and any of its officers, directors, Affiliates, or any Affiliate thereof, or between any Subsidiary of the Company and any of its officers, directors or Affiliates. (b) Section 3.11(b) of the Company Disclosure Schedule sets forth all agreements, understandings, instruments, contracts contracts, judgments, orders, writs or proposed transactions decrees to which the Company or any Group Company of its Subsidiaries is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, the Company or any Group Company of its Subsidiaries in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate$100,000, (ii) the license, assignment or transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company or any Group Company, of its Subsidiaries (other than licenses to the Company arising from the purchase of generally available “off the shelf” or to another Group Company or from a Founder to a Group Companyother standard products), (iii) the grant of rights to manufacture, producemarketing, assemble, license, marketsale or distribution of any products of the Company or any of its Subsidiaries in any jurisdiction, or sell its products to any other person or affect any Group restrictions on the Company’s or any of its Subsidiaries’ exclusive right rights to develop, manufacture, assemble, distribute, market or and sell its products, (iv) indemnification by the Company or any Group Company of its Subsidiaries with respect to infringements of proprietary rightsrights (other than indemnification obligations arising from purchase, sale or license agreements entered into in the ordinary course of business), or (v) any supply agreements. (c) The Company has delivered or has caused to be delivered to Parent or counsel to Parent correct and there are no agreementscomplete copies of each contract, understandings, instruments, contracts agreement or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations other arrangement listed in Section 3.11 of the Company Disclosure Schedule, as such contracts, agreements and arrangements are amended to date. Each such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are contract, agreement or other arrangement is a valid, binding and enforceable obligation of the Company or any of its Subsidiaries, as applicable, and, to the knowledge of the Company, of the other party or parties thereto, and is in full force and effect. Except as set forth in Section 3.11(c) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, the other party or parties thereto, is in breach or non-compliance, or, to the knowledge of the Company, is considered to be in breach or non-compliance by the other party thereto, of any term of any such contract, agreement or other arrangement. Except as set forth in Section 3.11(c) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has received notice of any default or threat thereof with respect to any such contract, agreement or other arrangement. Subject to obtaining any necessary consents by the other party or parties to any such contract, agreement or other arrangement (as further set forth in Section 3.11(c) of the Company Disclosure Schedule), no contract, agreement or other arrangement listed in Section 3.11 of the Company Disclosure Schedule includes or incorporates any provision the effect of which would be to enlarge or accelerate any obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to Company or any of its Subsidiaries or give rise additional rights to any material breach of such termsother party thereto or will in any other way be adversely affected by, no grounds for rescissionor terminate or lapse by reason of, avoidance the transactions contemplated by this Agreement or repudiation of the Related Agreements. (d) Neither the Company nor any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate its Subsidiaries has been received in respect of any Material Agreement. 10.2 The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its share capitalcapital stock, and no Group Company has (iii) incurred any indebtedness Indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 $100,000 or, in the case of Indebtedness or liabilities individually less than $100,000, in excess of US$25,000 $250,000 in the aggregate, (iiiii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables or loans not in excess of $100,000 in the ordinary course of businessaggregate made and repaid in full prior to January 1, 2003, or (iiiiv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged other than such sales that in this Agreement. the aggregate have a value of less than $100,000. (e) For the purposes of Sections 10.1 and 10.2 of this Schedule 5 Section 3.11(b), all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person (including persons the Company or entity any of its Subsidiaries has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionsubsections. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 (a) Schedule 3.8 sets forth all of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions following Contracts to which any Group the Company is a party or by which it is bound (other than the Transaction Agreements) that involve or constitute (the “Material Contracts”): (i) any obligations (contingent or otherwise) of, or payments to, any Group the Company in excess of US$$100,000 per annum in any fiscal year, in each case, other than Contracts with Major Customers, Major Channel Partners or in excess of US$500,000 Major Suppliers, Contracts on any Standard Company Form and purchase orders entered into in the aggregate, ordinary course of business on a form that does not materially deviate from the forms Made Available to Purchaser; (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right Intellectual Property Rights to or from any Group the Company, other than from (A) incidental licenses where the only license granted to the counterparty is (1) to feedback and suggestions where such incidental licenses do not contain or grant a license or rights to another Group any Copyright, Patent, or Trade Secret or (2) to use the Company’s Trademarks on a nonexclusive basis for marketing purposes under customary licensing terms for a Trademark license agreement (including quality control and policing) or in the provision of services solely for the benefit of Company under the applicable Contract, in each case pursuant to Company’s Contracts Made Available to Purchaser; (B) nonexclusive licenses for third party Intellectual Property Rights licensed to the Company that is generally commercially available software and is not incorporated into, integrated, bundled with, or from a Founder used to a Group Companyoffer or provide any of the Company Products, has not been modified or customized for the Company and is licensed for an annual fee under $10,000, (C) nonexclusive licenses governing the use of Open Source Software, and (D) licenses granted pursuant to any Standard Company Form; (iii) the grant of rights to manufacture, produce, assemble, license, market, market or sell its products to any other person Person or affect any Group that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, in each case, other than as set forth in a Standard Company Form; (iv) indemnification by any Group the Company with respect to infringements Infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts other than as set forth in a Standard Company Form; (v) Contracts for the lease of real property or proposed transactions between any Warrantor and any holder of Preferred Shares amending real property interests to or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company; (vi) Contracts for Indebtedness; (vii) Contracts with any Governmental Body; (viii) Contracts with all Major Suppliers, Major Channel Partners and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregate, (ii) made any loans or advances to any personMajor Customers, other than purchase orders entered into in the ordinary advances course of business on a form that does not materially deviate from the forms Made Available; (ix) customer Contracts with material deviations from the Company’s Standard Company Forms; (x) Contracts prohibiting the Company from freely engaging in any business or competing anywhere in the world, granting “most favored nation” pricing or exclusive rights to a counterparty or requiring the Company to purchase all or substantially all of its requirements for travel expenses and trade receivables a product or service from a particular Person; (xi) any settlement Contract with any Governmental Body or other Person containing obligations yet to be performed or completed by either or both parties thereto; (xii) any Contract (A) for the sale, transfer or acquisition of any material assets, Equity Interest or business of or to the Company (other than those providing for sales, transfers or acquisitions of inventory in the ordinary course of business), or for the grant to any Person of any preferential rights to purchase any of the assets, Equity Interests or business of the Company under which there are material outstanding obligations of the Company, or (iiiB) sold, exchanged for any acquisition or otherwise disposed divestiture of any of its operating business, material assets or rightsEquity Interests of any Person that contains an “earn-out” provision or other contingent or future payment obligation that has not been satisfied in full; and (xiii) Contracts with a professional employer organization, temporary employment agency, employee leasing or staffing agency. (b) With respect to each Contract required to be set forth on Schedule 3.8(a) and each Contract entered into by the Company that substantially conforms with the Standard Company Forms, (w) such agreement is legal, valid, binding and enforceable against the Company and, to the Company’s Knowledge, the other than party(ies) thereto (except to the sale extent that the enforceability thereof may be limited by the Enforceability Exceptions), and in full force and effect; (x) neither the Company, nor to the Company’s Knowledge, the other party(ies) thereto, is in breach or default in any material respect, and no event has occurred, or is expected to occur as a result of its inventory in the ordinary course transactions contemplated hereby, which with or without notice or lapse of business time, or otherwise envisaged in both, would constitute such a breach or default, or permit termination, modification or acceleration by the other party(ies) thereto, under such agreement; (y) neither the Company, nor to the Company’s Knowledge, the other party(ies) thereto, have repudiated or threatened to repudiate any provision of such agreement, and there is no dispute pending or, to the Company’s Knowledge, threatened under any such agreement; and (z) except as set forth on Schedule 3.8(b)(z), no such agreement would require consent for the Purchaser to acquire the Company, as contemplated by this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group The Company has engaged in the past three (3) months in any discussion with any representative Made Available to Purchaser a correct and complete copy of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or personeach agreement required to be set forth on Schedule 3.8(a).

Agreements; Actions. 10.1 Save (a) Except for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Transaction Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions to which any Group the Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group the Company in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate$25,000, (ii) the transfer or license of any patent, copyright, trademark, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder to a Group the Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Person that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by any Group the Company with respect to infringements of proprietary rights, rights (excluding rights of indemnification with respect to infringement of proprietary rights contained in written customer and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of vendor agreements entered into by the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are validordinary course of business, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to including without limitation those contained in any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received written agreements set forth in respect of any Material AgreementSchedule 2.10). 10.2 (b) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its share capitalcapital stock, and no Group Company has (iii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in except as are to be converted into Series A-2 Preferred Stock at the aggregateInitial Closing, (iiiii) made any loans or advances to any personPerson, other than ordinary advances for travel expenses and trade receivables in the ordinary course of businessexpenses, or (iiiiv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreementbusiness. For the purposes of Sections 10.1 subsections (b) and 10.2 (c) of this Schedule 5 Subsection 2.10, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity Person (including Persons the Company has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group (c) The Company is not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group CompanyPerson. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save (a) Except for the agreements set out Transaction Agreements, the Odyssey Contribution Agreement, and the Odyssey Equity Exchange Agreement and the debt for which OML is a guarantor as described in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents3.9(c), there are no other agreements, understandings, instruments, contracts or proposed transactions to which any Group Company OML is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group Company OML in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate$250,000, (ii) the transfer or license of any patent, copyright, trademark, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder to a Group CompanyOML, (iii) the grant of rights to manufacture, producesupply, assembleservice or operate any vessel or other equipment in connection with the exploration, license, marketdevelopment or extraction of offshore mineral resources, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by any Group Company OML with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Company (b) OML has not (i) declared or paid any dividendsdistributions, or authorized or made any distribution upon or with respect to any class of its share capitalequity securities, and no Group Company has (iii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 $250,000 or in excess of US$25,000 $1,000,000 in the aggregate, (iiiii) made any loans or advances to any personPerson, other than ordinary advances for travel expenses and trade receivables in the ordinary course of businessbusiness expenses, or (iiiiv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreementbusiness. For the purposes of Sections 10.1 (a) and 10.2 (b) of this Schedule 5 Section 3.9, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity Person (including Persons OML has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionsection. 10.3 No Group Company (c) Kiva Marine Limited, a wholly owned subsidiary of OML, entered into a loan agreement of $4,500,000 with Transocean Mineral Holdings (“Transocean”) on August 1, 2022. The proceeds of the loan were used to purchase and update the Anuanua Moana vessel for use in executing the exploration campaign in furtherance of the Exploration License. The terms of the loan provide for a maturity date of December 31, 2023. The loan is secured by a guarantor or indemnitor lien on the vessel and contains an option to convert into equity. (d) OML has not received notice of any indebtedness of any other person, firm or corporation that a default and is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule default under, or with respect to, or in connection breach of, any material contractual obligation nor does any condition exist that with this Agreement notice or lapse of time or both would constitute a default or breach thereunder. All Contracts are valid, subsisting, in full force and effect and binding upon OML and the other Transaction Documentsparties thereto, and OML has paid in full or accrued all amounts due thereunder and has satisfied in full or provided for all of its liabilities and obligations thereunder, except to the extent that the failure of any such payment or liability would not have a Material Adverse Effect. To OML’s knowledge, no Group Company has engaged other party to any such Contract is in default or breach thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a default or breach by such other party thereunder, except, to the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association extent that such default or other entity, or any individual, regarding (i) breach would not have a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or personMaterial Adverse Effect.

Agreements; Actions. 10.1 18.1 Save for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions entered into during the period from January 1, 2009, and September. 30, 2009, to which any Group Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, of or payments to, any Group Company in excess of US$100,000 10,000 per annum or in excess of US$500,000 25,000 in the aggregate, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder Key Holder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right tight to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties patties thereto and the terms thereof have been complied with by the relevant Group Company, and to the knowledge of the Warrantors’ knowledge’, by all the other parties thereto. There are to the knowledge of the Warrantors’ knowledge’, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 18.2 Save as set out in Section 10.2 The of the Disclosure Schedule, the Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregate, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 18.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 18.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for the agreements (a) Except as set out forth in Section 10.1 4.11(a) of the Company Disclosure Schedule (the “Material Agreements”) and the Transaction DocumentsSchedule, there are no other agreements, understandings or proposed transactions between the Company and any of its officers, directors, Affiliates, or any Affiliate thereof, or between any Subsidiary of the Company and any of its officers, directors or Affiliates. (b) Section 4.11(b) of the Company Disclosure Schedule sets forth all agreements, understandings, instruments, contracts contracts, judgments, orders, writs or proposed transactions decrees to which the Company or any Group Company of its Subsidiaries is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, the Company or any Group Company of its Subsidiaries in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate$100,000, (ii) the license, assignment or transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company or any Group Company, of its Subsidiaries (other than licenses to the Company arising from the purchase of generally available “off the shelf” or to another Group Company or from a Founder to a Group Companyother standard products), (iii) the grant of rights to manufacture, producemarketing, assemble, license, marketsale or distribution of any products of the Company or any of its Subsidiaries in any jurisdiction, or sell its products to any other person or affect any Group restrictions on the Company’s or any of its Subsidiaries’ exclusive right rights to develop, manufacture, assemble, distribute, market or and sell its products, (iv) indemnification by the Company or any Group Company of its Subsidiaries with respect to infringements of proprietary rightsrights (other than indemnification obligations arising from purchase, sale or license agreements entered into in the ordinary course of business), or (v) any supply agreements. (c) The Company has delivered or has caused to be delivered to Buyer or counsel to Buyer correct and there are no agreementscomplete copies of each contract, understandings, instruments, contracts agreement or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations other arrangement listed in Section 4.11 of the Company Disclosure Schedule, as such contracts, agreements and arrangements are amended to date. Each such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are contract, agreement or other arrangement is a valid, binding and enforceable obligation of the Company or any of its Subsidiaries, as applicable, and, to the knowledge of the Company, of the other party or parties thereto, and is in full force and effect. Except as set forth in Section 4.11(c) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, the other party or parties thereto, is in breach or non-compliance, or, to the knowledge of the Company, is considered to be in breach or non-compliance by the other party thereto, of any term of any such contract, agreement or other arrangement. Except as set forth in Section 4.11(c) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has received notice of any default or threat thereof with respect to any such contract, agreement or other arrangement. Subject to obtaining any necessary consents by the other party or parties to any such contract, agreement or other arrangement (as further set forth in Section 4.11(c) of the Company Disclosure Schedule), no contract, agreement or other arrangement listed in Section 4.11 of the Company Disclosure Schedule includes or incorporates any provision the effect of which would be to enlarge or accelerate any obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to Company or any of its Subsidiaries or give rise additional rights to any material breach of such termsother party thereto or will in any other way be adversely affected by, no grounds for rescissionor terminate or lapse by reason of, avoidance the transactions contemplated by this Agreement or repudiation of the Related Agreements. (d) Neither the Company nor any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate its Subsidiaries has been received in respect of any Material Agreement. 10.2 The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its share capitalcapital stock, and no Group Company has (iii) incurred any indebtedness Indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 $100,000 or, in the case of Indebtedness or liabilities individually less than $100,000, in excess of US$25,000 $250,000 in the aggregate, (iiiii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables or loans not in excess of $100,000 in the ordinary course of businessaggregate made and repaid in full prior to January 1, 2003, or (iiiiv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged other than such sales that in this Agreement. the aggregate have a value of less than $100,000. (e) For the purposes of Sections 10.1 and 10.2 of this Schedule 5 Section 4.11(b), all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person (including persons the Company or entity any of its Subsidiaries has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionsubsections. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts Contracts or proposed transactions to which any Group Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group Company in excess of US$100,000 200,000 per annum or in excess of US$500,000 1,000,000 in the aggregate, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by any Group Company with respect to infringements of proprietary rights, or (v) business cooperation, joint development, or similar arrangements involving any Group Company, and there are no agreements, understandings, instruments, contracts Contracts or proposed transactions between any Warrantor and any holder of Preferred Shares Stock amending or varying the rights or obligations of the Company and such holder of Preferred Shares Stock from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 100,000 or in excess of US$25,000 250,000 in the aggregate, except those in the ordinary course of business, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts Contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save (a) Except for the agreements Transaction Documents and as set out in Section 10.1 of the Disclosure forth on Schedule (the “Material Agreements”) and the Transaction Documents4.9(a), there are no material (singly and in the aggregate together with all related transactions) agreements or understandings (i) among any of the Company, any Subsidiary, any current or former shareholder, any officer, director or other agreementsAffiliate of the Company or of such Subsidiary or Affiliate of such shareholder, understandingsofficer, instruments, contracts director or proposed transactions to which other Affiliate or (ii) between any Group Company is a party or by which it is bound of the foregoing and any Investor (as defined in the MAA). (b) Schedule 4.9(b) sets forth all Contracts (other than the Prior Transaction Documents) that may involve (i) obligations (contingent or otherwise) of, or payments to, the Company or any Group Company of its Subsidiaries in excess of US$100,000 per annum or in excess which are otherwise material to the Condition of US$500,000 in the aggregate, Company and (ii) the transfer or license of any patentPatent, copyrightCopyright, trade secret Trade Secret, Trademark or other proprietary right to or from the Company or any Group Companyof its Subsidiaries, other than licenses arising from the purchase of “off the shelf” or to another Group Company or from a Founder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its other standard products that are not and will not to any other person extent be part of any service or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations intellectual property offering of the Company or any of its Subsidiaries (the foregoing Clauses (i) and such holder (ii), the “Material Contracts”). The Company has not received notice of Preferred Shares from those set out a default, and neither the Company nor any of its Subsidiaries is in default, under or with respect to, any Material Contract nor, to the Transaction DocumentsCompany’s knowledge is any other party thereto. All the of such Material Agreements Contracts are valid, subsisting, in full force and effect and binding and enforceable obligations of upon the parties thereto and Company or the terms thereof have been complied with by applicable Subsidiary, as the relevant Group Companycase may, and and, to the Warrantors’ Company’s knowledge, by all the other parties thereto, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to creditors’ rights generally and general principles of equity, regardless of whether asserted in a proceeding in equity or at law. The Company and its Subsidiaries have paid in full or accrued all amounts due thereunder and has satisfied in full or provided for all of its liabilities and obligations thereunder. To the knowledge of the Company, no other party to any such Material Contract is in default thereunder nor does any condition exist that with notice or lapse of time or both would constitute a default by such other party thereunder. (c) There are to no Material Contracts that may involve provisions restricting the Warrantors’ knowledgedevelopment, no circumstances likely to give rise to any material breach manufacture or distribution of such terms, no grounds for rescission, avoidance the products or repudiation services of the Company or any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreementits Subsidiaries. 10.2 The Company (d) No Group Member has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed capital shares or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregate, (ii) made any loans or advances to any personPerson, other than to employees or directors for ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionless than US$100,000. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions entered into during the period from January 1, 2009, and September 30, 2009, to which any Group Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group Company in excess of US$100,000 10,000 per annum or in excess of US$500,000 25,000 in the aggregate, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder Key Holder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the knowledge of the Warrantors’ knowledge’, by all the other parties thereto. There are to the knowledge of the Warrantors’ knowledge’, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Save as set out in Section 10.2 of the Disclosure Schedule, the Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregate, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 4 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save (a) To the knowledge of such Seller, except for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Transaction Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions to which any Group the Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group the Company in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate$10,000, (ii) the transfer or license of any patent, copyright, trademark, trade secret or other proprietary right to or from any Group Company, the Company other than from or to another Group Company or from a Founder to a Group end user agreements entered into in the Company’s ordinary course of business, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Person that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by any Group the Company with respect to infringements of proprietary rights. (b) Except as set forth on the Disclosure Schedule attached as Exhibit F to this Agreement, and there are no agreementsexcept as expressly provided in this Agreement, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach knowledge of such termsSeller, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Company has not declared or paid any dividends, or (i) authorized or made any distribution upon or with respect to any class of its share capitalmembership interests, and no Group Company has (iii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$$10,000 or in excess of US$25,000 $50,000 in the aggregate, (iiiii) made any loans or advances to any personPerson, other than ordinary advances for travel expenses and trade receivables in the ordinary course of businessexpenses, or (iiiiv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreementbusiness. For the purposes of Sections 10.1 subsections (a) and 10.2 (b) of this Schedule 5 Subsection 3.10, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity Person (including Persons such Seller has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group (c) To the knowledge of such Seller, the Company is not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Companyanother Person. 10.4 Save as set out in Section 10.4 (d) To the knowledge of such Seller, the Company nor any representative of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three six (36) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, Person regarding (i) a sale or exclusive license of all or substantially all of such Group the Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group the Company with or into another corporation, entity or personPerson.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 (a) Set forth on Schedule 4.15(a) is a list of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions each written agreement to which any Group the Company is a party or by which it is otherwise bound that involve as of the Initial Closing Date: (i) obligations (contingent or otherwise) of, or payments to, any Group Company in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate, constituting a Claim Proceeds Purchase Agreement; (ii) the transfer or license of any patentunder which it has created, copyrightincurred, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, marketassumed, or sell its products guaranteed (or may create, incur, assume, or guarantee) indebtedness for borrowed money or capitalized lease obligations involving more than $50,000 or pursuant to which a lien is or may be imposed on any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations assets of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregate, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For of the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated Company); and (iii) for the purpose making of meeting any loan or advance of funds by the individual minimum dollar amounts of such subsectionCompany to any Person (other than Claim Proceeds Purchase Agreements and ordinary advances to employees for travel expenses). 10.3 No Group Company is a guarantor or indemnitor of (b) Prior to entering into any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Claim Proceeds Purchase Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative Person whose primary place of any corporationresidence or business is located in a state (the “Applicable State”) in which there are no Persons with which the Company had previously entered into a Claim Proceeds Purchase Agreement, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding the Company (i) a sale consulted with legal counsel (which may or may not be licensed to practice in the Applicable State) with respect to the validity and enforceability of all or substantially all Claim Proceeds Purchase Agreements under the Applicable Law of the Applicable State and (ii) on the basis of such Group Company’s assetslegal consultations, among other factors, attempted in good faith to make a considered business judgment with respect to the advisability of entering into such Claim Proceeds Purchase Agreement. (c) Except as set forth on Schedule 4.15(c), the Company has not: (i) received any written claims from any Persons asserting that any Claim Proceeds Purchase Agreement is not valid or enforceable under Applicable Law; or (ii) otherwise received any mergerwritten notice which is in turn validated by legal counsel of any change in Applicable Law of any state or of any change in the interpretation or application of Applicable Law of any state with respect to the enforceability of any Claim Proceeds Purchase Agreement in such state (other than, consolidation in the case of each of clauses (i) and (ii), any such written claims or other business combination transaction changes in Applicable Law of such Group Company with any state or into another corporationany change in the interpretation or application of Applicable Law of any state that have not, entity or personand could not reasonably anticipated to, have a Materially Adverse Effect on the Company.

Agreements; Actions. 10.1 Save (a) Except for the agreements explicitly contemplated hereby, as set out forth in Section 10.1 the Schedule of the Disclosure Schedule (the “Material Agreements”) and the Transaction DocumentsExceptions, there are no other agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates or any affiliate thereof. (b) There are no agreements, understandings, instruments, contracts or proposed transactions to which any Group the Company is a party or by which it is bound that which involve (i) obligations (contingent or otherwise) of, or payments to, any Group the Company in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate$10,000, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group of the Company or from a Founder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreementagreement. 10.2 (c) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its share capitalcapital stock, and no Group Company has (iii) incurred any indebtedness for money borrowed or borrowed, (iii) incurred any other liabilities individually in excess of US$$10,000 or in excess of US$$25,000 in the aggregate, other than obligations or liabilities of the Company for compensation under employment, advisor or consulting agreements, (iiiv) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of businessexpenses, or (iiiv) sold, exchanged or otherwise disposed of any of its material assets or rights, other than rights or (vi) agreed to any of the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionforegoing. 10.3 No Group (d) The Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Companyparty to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Certificate or Bylaws, which to the knowledge of the Company adversely affects in any material respect its business as now conducted or as proposed to be conducted, its properties or its financial condition. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or (e) Except with respect to Microcide in connection with this Agreement the purchase and sale of Series A Preferred, the other Transaction Documents, no Group Company has not engaged in the past three (3) six months in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, trust, joint venture, limited liability company, association or other entity, business entity or any individualindividual regarding the sale, regarding (i) a sale conveyance or disposition of all or substantially all of such Group Company’s assetsthe assets of the Company or a transaction or series of related transactions in which more than 50 percent of the voting power of the Company is disposed of, other than as 9 contemplated by this Agreement, or (iiiii) regarding any mergerother form of liquidation, consolidation dissolution or winding up of the Company. (f) The Company was incorporated on December 11, 1997 and has not yet commenced operations other business combination transaction than in connection with and as contemplated by this Agreement and the Agreements or in connection with its initial organization, recruitment of such Group Company with or into another corporationemployees and consultants, entity or personlicensing patents and technology, leasing a facility, and other similar activities.

Agreements; Actions. 10.1 Save for the agreements set out in (a) Section 10.1 2.8(a) of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts Schedules sets forth all Contracts or proposed transactions Contracts to which any Group the Company is a party or by which it is bound (other than the Transaction Agreements) that involve (i) obligations (contingent or otherwise) of, or payments to, any Group the Company in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate$50,000, (ii) the transfer license (including covenants not to sue, non-assertion provisions or license releases or immunities from suit that relate to Intellectual Property) of any patent, copyright, trade secret Intellectual Property or other proprietary right to or from any Group Company, other than the Company provided that the following Contracts do not need to be listed in Section 2.8(a) of the Disclosure Schedules: (1) licenses from the Company that are confidentiality or non-disclosure agreements executed by the Company in the ordinary course of business (“NDAs”) or (2) licenses to another Group the Company that are NDAs or from a Founder to a Group CompanyShrink-Wrap Code Licenses or licenses for Open Source Software (1 and 2 above collectively “Unlisted Licenses”), (iii) the grant of rights to manufacture, produce, assemble, license, market, market or sell its products to any other person Person or affect any Group that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by any Group the Company with respect to infringements of proprietary rightsrights (to the extent they substantially deviate from the form terms and conditions provided to Purchaser prior to the Closing Date), (v) Contracts for the lease of real property or real property interests to or by the Company, (vi) Contracts for Indebtedness, (vii) Contracts with any Governmental Body, (viii) Contracts by which the Company has granted any Person a power of attorney, (ix) Contracts with all Major Suppliers and Major Customers, (x) Contracts with any Employees that cannot be terminated without payment with less than 30 days’ notice, (xi) Contracts with any staffing or personnel agency or professional employer organization, (xii) collective bargaining or other labor Contracts; and (xiii) any other Contract, or group of Contracts, the termination or breach of which would be, or would be reasonably expected to be material to the Company (each of the foregoing, a “Material Contract”). (b) With respect to each Material Contract (including listed Contracts and Unlisted Licenses), (x) such Material Contract is legal, valid, binding, enforceable, except as enforceability may be limited by the Bankruptcy and Equity Exceptions, free and clear of any Lien (other than a Permitted Lien), and there are no agreementsin full force and effect on identical terms as set forth in the copies provided to the Purchaser, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations (y) except as set forth on Section 2.8(b)(x) of the Company Disclosure Schedules, neither the Company, nor to the Company’s Knowledge, the other party(ies) thereto, is in material breach or default, and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are validno event has occurred, binding and enforceable obligations or will occur as a result of the parties thereto transactions contemplated hereby, which with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under such Material Contract, and (z) except as set forth on Section 2.8(b)(y) of the terms thereof have been complied with by Disclosure Schedules, neither the relevant Group Company, and nor to the Warrantors’ knowledgeCompany’s Knowledge, by all the other parties party(ies) thereto. There are , have repudiated or threatened to repudiate any provision of such Material Contract and there is no dispute pending or, to the Warrantors’ knowledgeCompany’s Knowledge, no circumstances likely to give rise to threatened under any material breach of such terms, no grounds for rescission, avoidance or repudiation of any Material Contract. (c) Except as otherwise set forth in Section 2.8(c) of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Disclosure Schedules, the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregateEquity Interests, (ii) made any loans or advances to any personPerson, other than ordinary advances for travel out-of-pocket, travel, relocation or other business-related expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 subsections (c) and 10.2 (d) of this Schedule 5 Section 2.8, all indebtedness, liabilities, agreements, understandings, instruments, contracts Contracts and proposed transactions involving the same person or entity Person (including any other Persons the Company has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group (d) The Company is not a guarantor or indemnitor of any indebtedness Indebtedness of any other person, firm or corporation that is not a Group CompanyPerson. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 (a) Schedule 3.8(a) of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts Schedules sets forth all Contracts or proposed transactions to which any the Company Group Company is a party or by which it is bound (other than the Transaction Agreements or Benefit Plans listed on Schedule 3.14(g)) that involve (i) obligations (contingent or otherwise) of, or payments to, any the Company Group Company in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate$500,000.00 on an annual basis, (ii) a license (A) under which the transfer Company Group receives a right or license to use any Intellectual Property of another Person (except for (x) licenses of commonly available off-the-shelf shrink wrap or click-to-agree license of business-related software used by the Company Group in the ordinary course of business with aggregate fees of less than $500,000.00 on an annual basis, (y) licenses primarily for the provision of services (other than software development) where the granting of any patentnon-exclusive license to use Intellectual Property in the ordinary course of business is ancillary or incidental to the transactions contemplated in such Contract, copyright, trade secret or other proprietary right to or from any Group Company, the commercial purpose of which is something other than from such license, and (z) Open Source Licenses), or (B) under which any Person has obtained a right or license to another Group use any Company or from a Founder Owned IP (except for non-exclusive, end-user licenses granted in the ordinary course of business to a Group Companycustomers for non-custom Company Offerings substantially on Company Group’s standard form(s) (as such form(s) have been furnished to Purchaser) without material modification), (iii) the acquisition or development for or on behalf of the Company Group of any material Intellectual Property (other than employee invention assignment or contractor agreements executed on the Company’s standard form of agreement (as such form(s) have been furnished to Purchaser) without material modifications) or any material assets or the Equity Interests of any Person, (iv) the Company Group divesting any material Intellectual Property in the last three (3) years, (v) material limitations on the Company Group’s ability to own, disclose, license, use, or enforce any Company Intellectual Property, (vi) arising out of any dispute with respect to Intellectual Property (including concurrent use agreements, settlement agreements, coexistence agreements, and covenant not to sue agreements), (vii) the grant by the Company Group of rights to manufacture, produce, assemble, license, market, or sell its products the Company Offerings to any other person Person or affect any Group Companythat limit the Company Group’s exclusive right to develop, manufacture, assemble, distribute, market or sell its productsCompany Offerings, (viii) Contracts for the lease of real property or real property interests to or by the Company Group, (ix) Contracts for Indebtedness, (x) Labor Agreements, (xi) any employment, independent contractor or consulting, deferred compensation, severance or bonus Contract with any current or former employee, officer, director or other individual service provider of the Company that (A) provides for (x) base annual cash compensation in excess of $200,000, (y) payment of any severance benefits, or (z) any change in control, retention or other payments that would be triggered solely by the consummation of the transaction or (B) cannot be terminated upon sixty days’ notice or less without further payment, liability or obligation, (xii) Contracts that are settlement or similar agreements with any Governmental Body, school districts or state department of education or pursuant to which the Company Group will have any material outstanding obligation after the date of this Agreement, (xiii) Contracts with any Governmental Body, other than customer Contracts between the Company Group and customers that are schools, colleges, universities, school districts or state departments of education, (xiv) agreements related to any completed material business acquisition by the Company or any of its Subsidiaries in the last three (3) years, (xv) (A) under which the Company or any Subsidiary has advanced or loaned money to, guaranteed an amount for the benefit of or made an investment in any Person or (B) under which any Person would be deemed to have Indebtedness to the Company in amounts in the aggregate exceeding $500,000, (xvi) a Top Customer, (xvii) a Top Vendor or (xviii) prohibitions on the Company or any Subsidiary from freely engaging in any business or competing anywhere in the world, granting most favored nation pricing or exclusive rights to a counterparty or requiring it to purchase all or substantially all of its requirements for a product or service from a particular Person. (b) Except as set forth on Schedule 3.8(b), with respect to each such Contract required to be set forth on Schedule 3.8(a) of the Disclosure Schedules: (i) such Contract is legal, valid, binding, enforceable, free and clear of any Lien and in full force and effect; (ii) neither the Company Group, nor to the Company’s Knowledge, the other party(ies) thereto, is in breach or default, and no event has occurred, or will occur (with the delivery of notice, the passage of time or both) as a result of the transactions contemplated hereby, which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under such Contract; (iii) neither the Company Group, nor to the Company’s Knowledge, the other party(ies) thereto, have repudiated or threatened to repudiate any provision of such Contract, and there is no dispute pending or, to the Company’s Knowledge, threatened under any such Contract; and (iv) indemnification by no such Contract would restrict in any Group Company with respect way or require consent for Purchaser to infringements of proprietary rights, acquire the Purchased Units and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying operate the rights or obligations business of the Company and such holder of Preferred Shares from those Group as it is currently being operated. (c) Except as set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations forth on Schedule 3.8(c) of the parties thereto and Disclosure Schedules, the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capitalEquity Interests, and no Group Company has (iii) incurred any indebtedness for money borrowed Indebtedness or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregate$500,000.00, (iiiii) made any loans or advances to any personPerson, other than ordinary advances for travel expenses and trade receivables to employees in the ordinary course of business, or (iiiiv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 subsections (c) and 10.2 (d) of this Schedule 5 Section 3.8, all indebtednessIndebtedness, liabilities, agreements, understandings, instruments, contracts Contracts and proposed transactions involving the same person or entity Person (including any other Persons the Company has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No (d) The Company Group Company is not a guarantor or indemnitor of any indebtedness Indebtedness of any other person, firm or corporation that is not a Group CompanyPerson. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save (a) Except for the agreements set out Transaction Documents and matters arising in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documentsconnection with this financing, there are no other agreements, understandings, instruments, contracts or proposed transactions to which any Group the Company is a party or by which it is bound that involve involve: (i) obligations (contingent or otherwise) of, or payments to, any Group Company in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate, Company; (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right Intellectual Property Rights to or from any Group the Company, other than from or to another Group Company or from a Founder to a Group Company, ; (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person Person, or which affect any Group the Company’s 's exclusive right to develop, manufacture, assemble, distribute, market or sell its products, products anywhere in the world; or (iv) indemnification by any Group the Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 (b) The Company has not not: (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its share capital, and no Group Company has capital or capital stock; (iii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregate, liabilities; (iiiii) made any loans or advances to any personPerson, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or expenses; or (iiiiv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreementbusiness. For the purposes of Sections 10.1 subsections (b) and 10.2 (c) of this Schedule 5 Section 3.11, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity Person (including any Persons the Company has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group (c) The Company is not a guarantor of or indemnitor of any of, the indebtedness of any other personPerson. (d) The Company is not in breach of any contracts, firm agreements or corporation that arrangements to which it is a party, and has no knowledge of the invalidity of, or grounds for rescission, avoidance or repudiation of any such contract, agreement, arrangement or transaction to which the Company is a party, nor has it received notice of any intention to terminate any such contract, agreement or arrangements, or to repudiate or disclaim any such transaction. (e) No party with whom the Company has entered into any contract, agreement or arrangement is in default thereunder, being a default which would have a Material Adverse Effect on the Company, and there are no circumstances likely to give rise to any such default. (f) The Company is not a Group Company. 10.4 Save as set out in Section 10.4 party to any agreement, contract or arrangement which, by reason of the Disclosure Schedule sale of the Series A Preferred Shares, or in connection with by reason of any Party or any of its Affiliates entering into or performing any provision of this Agreement and and/or of the other Transaction Documents, no Group gives any other contracting party the right to terminate such contract, agreement or arrangement, or to create or increase any obligation on the Company (whether to make payment or otherwise) to any Person. (g) Save as expressly provided in or contemplated by the Transaction Documents, the Company has engaged in the past three (3) months in any discussion with any representative of any corporationno material or long term agreements, partnershipcontracts, trust, joint venture, arrangements or commitments binding upon it including but not limited liability company, association or other entity, or any individual, regarding to: (i) a sale any contract, agreement or arrangement entered into otherwise than in the ordinary course of all or substantially all of such Group Company’s assets, or business; (ii) any mergercontract, consolidation agreement or arrangement otherwise than by way of bargain at arm's length; (iii) involving licensing or transfer of technology or IPR to or by the Company; (iv) any sale or purchase option or similar contract or arrangement affecting any assets owned or used by the Company or by which the Company is bound; (v) any agreement, contract or arrangement which cannot readily be fulfilled or performed by the Company on time or without undue or unusual expenditure of money or effort; (vi) any agreement, contract or arrangement whereby the Company is, or has agreed to become, a member of any joint venture, consortium or partnership or other unincorporated association; and (vii) any agreement, contract or arrangement whereby the Company is, or has agreed to become, a party to any distributorship or agency agreement. (h) There are no agreements in force restricting the freedom of the Company to provide and take goods and services or to manage its own business combination transaction affairs by such means and from and to such Persons as it may from time to time think fit. (i) Save for any condition or warranty implied by law or contained in its standard terms of business or otherwise given in the ordinary course of business, the Company has not given any guarantee condition or warranty or made any representation in respect of goods (including trading stock) or services supplied or contracted to be supplied by it, nor has it accepted any obligation that could give rise to any liability after any such Group goods or services has been supplied by it. (j) Other than pursuant to or as expressly contemplated by any Transaction Document, the Company with has not entered into any agreement, contract or into another corporationarrangement with, entity or persongiven any undertaking or assurance to, any of the existing shareholders of the Company or their Affiliates. (k) Other than as required by or as expressly contemplated by any Transaction Document, there are no agreements, contracts or arrangements binding on the Company which prohibit or restrict the sale, disposal or transfer of any equity or debt securities (or any interests therein) owned by the Company.

Agreements; Actions. 10.1 Save (a) Except for the agreements Transaction Agreements and as set out forth in Section 10.1 of 2.10(a) to the Disclosure Schedule (the “Material Agreements”) and the Transaction DocumentsSchedule, there are no other agreements, understandings, instruments, contracts or proposed transactions to which any Group the Company or Accelsius is a party or by which it either is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group the Company or Accelsius in excess of US$100,000 per annum or in excess of US$500,000 in the aggregate$50,000, (ii) the transfer or license of any patent, copyright, trademark, trade secret or other proprietary right to or from any Group Company, other than from or to another Group the Company or from a Founder to a Group CompanyAccelsius, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its the Company’s or Accelsius’ products to any other person or affect any Group Person that limit the Company’s or Accelsius’ exclusive right to develop, manufacture, assemble, distribute, market or sell its their respective products, or (iv) indemnification by any Group the Company or Accelsius with respect to infringements of proprietary rights. (b) Except as set forth in Section 2.10(b) to the Disclosure Schedule, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of neither the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate nor Accelsius has been received in respect of any Material Agreement. 10.2 The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its share capitalequity securities, and no Group Company has (iii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 $50,000 or in excess of US$25,000 $150,000 in the aggregate, (iiiii) made any loans or advances to any personPerson, other than ordinary advances for travel expenses and trade receivables in the ordinary course of businessexpenses, or (iiiiv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. business. (c) For the purposes of Sections 10.1 (a) and 10.2 (c) of this Schedule 5 Section 2.10, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person Person (including Persons the Company or entity Accelsius has reason to believe are affiliated with each other) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionSection. 10.3 No Group (d) Neither the Company nor Accelsius is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group CompanyPerson. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts Contracts or proposed transactions to which any Group Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group Company in excess of US$100,000 200,000 per annum or in excess of US$500,000 1,000,000 in the aggregate, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by any Group Company with respect to infringements of proprietary rights, or (v) business cooperation, joint development, or similar arrangements involving any Group Company, and there are no agreements, understandings, instruments, contracts Contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 100,000 or in excess of US$25,000 250,000 in the aggregate, except those in the ordinary course of business, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts Contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions to which any Group Company Entity is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group Company Entity in excess of US$100,000 per annum or in excess of US$500,000 100,000 in the aggregate, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group CompanyEntity, other than from or to another Group Company Entity or from a Founder to a Group CompanyEntity, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group CompanyEntity’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by any Group Company Entity with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group CompanyEntity, and to the knowledge of the Warrantors’ knowledge’, by all the other parties thereto. There are to the knowledge of the Warrantors’ knowledge’, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Save as set out in Section 10.2 of the Disclosure Schedule, the Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company Entity has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 100,000 or in excess of US$25,000 100,000 in the aggregate, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 4 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group Company Entity is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group CompanyEntity. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company Entity has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group CompanyEntity’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company Entity with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions to which any Group Company is a party or by which it is bound that involve (i) obligations (contingent or otherwise) of, or payments to, any Group Company in excess of US$100,000 per annum or in excess of US$500,000 in the aggregateRMB400,000, (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, other than from or to another Group Company or from a Founder the Existing Shareholder to a Group Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, or (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group CompanyCompany in all material respects, and to the Warrantors’ knowledgeKnowledge, by all the other parties theretothereto in all material respects. There are to the Warrantors’ knowledgeKnowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Save as set out in Section 10.2 of the Disclosure Schedule, the Company has not declared or paid any dividends, or authorized or made any distribution upon or with respect to any class of its share capital, and no Group Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregateRMB400,000, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Except as set forth in Section 10.3 of the Disclosure Schedule, no Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.

Agreements; Actions. 10.1 Save for the agreements set out in Section 10.1 (a) Subsection 2.9(a) of the Disclosure Schedule sets forth, by reference to the applicable subsection of this Subsection 2.9(a), all of the following Contracts (the “Material Agreements”other than leases for real property) and the Transaction Documents, there are no other agreements, understandings, instruments, contracts or proposed transactions to which any Group the Company is a party or by which it is its assets or properties are bound that involve (collectively, the “Material Contracts”): (i) obligations Except for stock option agreements entered into under the Stock Plan, Financing Warrants, Compensatory Warrants, Contracts entered into by the Company for the sale of Existing Preferred Stock and Financing Warrants and Disclosure Documents, Contracts with any stockholder of the Company or Affiliate thereof or any current or former officer, director, stockholder or Affiliate of the Company; (contingent ii) Contracts with any labor union or association representing any employee of the Company; (iii) Contracts for the sale of any of the assets of the Company other than in the Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase any of its assets; (iv) Contracts for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of profits or proprietary information; (v) Contracts that limit the ability of the Company from competing in its line of business, as currently conducted; for purposes of this provision permitted use restrictions contained in a Contract for the lease of real property shall not be considered a provision that limits the Company’s ability to compete in any line of business or geographic area; (vi) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) ofby the Company of any operating business or material assets or the capital stock of any other Person; (vii) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness by the Company or imposing a Lien on any of the assets of the Company, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or payments toconditional sale or title retention agreements; (viii) Contracts, other than purchase orders entered into in the Ordinary Course of Business and Contracts for the employment of any Group individual on a full-time, part-time or consulting or other basis, giving rise to Liabilities of the Company in excess of US$100,000 per annum $150,000 during the term thereof; (ix) Contracts (or groups of related Contracts), other than purchase orders entered into in the Ordinary Course of Business, providing for payments to the Company in excess of US$500,000 $50,000 in any fiscal year or $150,000 in the aggregateaggregate during the term thereof; (x) Contracts requiring the Company to purchase a minimum volume of products from a supplier or requiring the Company to sell a minimum of its products; (xi) Contracts under which the Company has made advances or loans to any other Person; (xii) Contracts providing for severance, retention, change in control or other similar payments; (xiii) Contracts for the employment of any individual on a full-time, part-time basis providing annual cash compensation in excess of $150,000; (xiv) material Contracts with independent contractors or consultants (or similar arrangements) that (A) are not cancelable without penalty or further payment and without more than 30 days’ notice or (B) provide for annual cash compensation in excess of $150,000 per year; and (xv) outstanding Contracts of guaranty, surety or indemnification, direct or indirect, by the Company. (b) Except as set forth in Subsection 2.9(b) of the Disclosure Schedule, each Material Contract is a legal, valid and binding agreement and in full force and effect and enforceable by the Company in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the transfer or license availability of any patentspecific performance, copyrightinjunctive relief, trade secret or other proprietary right equitable remedies. Except as set forth in Subsection 2.9(b) of the Disclosure Schedule, (A) upon consummation of the transactions contemplated by this Agreement, each Material Contract shall continue in full force and effect without penalty or other adverse consequence and (B) the Company is not in default under any Material Contract, nor, to or from any Group the Knowledge of the Company, is any other than from party to any Material Contract in breach of or default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default by the Company or, to another Group Company or from a Founder to a Group the Knowledge of the Company, (iii) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person or affect any Group Company’s exclusive right party thereunder. No party to develop, manufacture, assemble, distribute, market or sell its products, (iv) indemnification by any Group Company with respect to infringements of proprietary rights, and there are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying the rights or obligations of the Company and such holder of Preferred Shares from those set out in the Transaction Documents. All the Material Agreements are valid, binding and enforceable obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to give rise to any material breach of such terms, no grounds for rescission, avoidance or repudiation of any of the Material Agreements which would have a Material Adverse Effect Contracts has exercised any termination rights with respect thereto, and no party has given written notice of termination or of intention to terminate has been received in respect of any Material Agreement. 10.2 The Company has not declared or paid any dividends, or authorized or made any distribution upon or significant dispute with respect to any class of its share capital, and no Group Material Contract. The Company has (i) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess delivered to Purchaser true, correct and complete copies of US$10,000 or in excess of US$25,000 in the aggregate, (ii) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of business, or (iii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsection. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule Material Contracts, together with all amendments, modifications or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or personsupplements thereto.

Agreements; Actions. 10.1 Save for the agreements (a) Except as set out forth in Section 10.1 2.10(a) of the Disclosure Schedule, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, Shareholders, Affiliates, or any Affiliate thereof. (b) Section 2.10(b) of the Disclosure Schedule (the “Material Agreements”) and the Transaction Documents, there are no other sets forth all agreements, understandings, instruments, contracts contracts, proposed transactions, judgments, orders, writs or proposed transactions decrees to which any Group the Company is a party or by which it is bound that involve (i1) obligations (contingent or otherwise) of, or payments to, any Group the Company in excess of US$100,000 per annum that may not be extinguished on thirty (30) days notice or in excess of US$500,000 in the aggregateless, (ii2) the license, assignment or transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Group Company, the Company (other than licenses to the Company arising from the purchase of "off the shelf' or to another Group Company or from a Founder to a Group Companyother standard products), (iii3) the grant of rights to manufacture, producemarketing, assemble, license, marketsale or distribution of any products of the Company in any jurisdiction, or sell its products to any other person or affect any Group restrictions on the Company’s 's exclusive right rights to develop, manufacture, assemble, distribute, market or and sell its products, (iv4) indemnification by any Group the Company with respect to infringements of proprietary rightsrights (other than indemnification obligations arising from purchase, and there sale or license agreements entered into in the ordinary course of business), (5) any supply agreements or (6) other agreements that are no agreements, understandings, instruments, contracts or proposed transactions between any Warrantor and any holder of Preferred Shares amending or varying otherwise material to the rights or obligations business of the Company. (c) The Company has delivered, has caused to be delivered or made available to the Purchaser correct and complete copies of each contract, agreement or other arrangement listed in Section 2.10(b) of the Disclosure Schedule, as such holder of Preferred Shares from those set out in the Transaction Documentscontracts, agreements and arrangements are amended to date. All the Material Agreements are Each such contract, agreement or other arrangement is a valid, binding and enforceable obligation of the Company, as applicable, and, to the knowledge of the Company, of the other party or parties thereto, and is in full force and effect. Except as set forth in Section 2.10(c) of the Disclosure Schedule, neither the Company nor, to the knowledge of the Company, the other party or parties thereto, is in breach or non-compliance, or is considered to be in breach or noncompliance by the other party thereto, of any material term of any such contract, agreement or other arrangement. Except as set forth in Section 2.10(c) of the Disclosure Schedule, the Company has not received written notice of any default or threat thereof with respect to any such contract, agreement or other arrangement and the Company has no reasonable basis for suspecting that any such default exists or will be forthcoming. Subject to obtaining any necessary consents by the other party or parties to any such contract, agreement or other arrangement (as further set forth in Section 2.10(c) of the Disclosure Schedule), no contract, agreement or other arrangement listed in Section 2.10 of the Disclosure Schedule includes or incorporates any provision the effect of which would be to enlarge or accelerate any obligations of the parties thereto and the terms thereof have been complied with by the relevant Group Company, and to the Warrantors’ knowledge, by all the other parties thereto. There are to the Warrantors’ knowledge, no circumstances likely to Company or give rise additional rights to any material breach of such termsother party thereto or will in any other way be materially adversely affected by, no grounds for rescissionor terminate or lapse by reason of, avoidance the transactions contemplated by this Agreement or repudiation of any of the Material Agreements which would have a Material Adverse Effect and no notice of termination or of intention to terminate has been received in respect of any Material AgreementRelated Agreements. 10.2 The (d) Since January 1, 2004, the Company has not (1) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its share capitalcapital stock, and no Group Company has (i2) incurred any indebtedness Indebtedness for money borrowed or incurred any other liabilities individually in excess of US$10,000 or in excess of US$25,000 in the aggregateliabilities, (ii3) made any loans or advances to any person, other than ordinary advances for travel expenses and trade receivables in the ordinary course of businessother business expenses, or (iii4) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business or otherwise envisaged in this Agreement. For the purposes of Sections 10.1 and 10.2 of this Schedule 5 all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionbusiness. 10.3 No Group Company is a guarantor or indemnitor of any indebtedness of any other person, firm or corporation that is not a Group Company. 10.4 Save as set out in Section 10.4 of the Disclosure Schedule or in connection with this Agreement and the other Transaction Documents, no Group Company has engaged in the past three (3) months in any discussion with any representative of any corporation, partnership, trust, joint venture, limited liability company, association or other entity, or any individual, regarding (i) a sale of all or substantially all of such Group Company’s assets, or (ii) any merger, consolidation or other business combination transaction of such Group Company with or into another corporation, entity or person.