Common use of Agreements, Contracts and Commitments Clause in Contracts

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary on no more than thirty (30) days' notice without liability or financial obligation to Company. (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. (a) Neither the Company nor any Company Subsidiary is a party to of its Subsidiaries has any agreements, contracts or is bound by: commitments which (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable require payment by the Company or any Company Subsidiary on no more than thirty of its Subsidiaries in excess of $250,000 or (30ii) days' notice without liability or financial obligation to Company.require the making of any charitable contribution in excess of $50,000; (b) any agreement No purchase contracts or plan, including, without limitation, any stock option plan, stock appreciation right plan purchase commitments of the Company or stock purchase plan, any of its Subsidiaries have a duration in excess of the benefits normal, ordinary and usual requirements of the business of the Company or its Subsidiary, as applicable; (c) There are no outstanding sales contracts or sales commitments of the Company or any of its Subsidiaries which will have a duration in excess of the normal, ordinary and usual practices of the business of the Company, and there are no outstanding contracts, bids or sales or service proposals quoting prices or terms which would not reasonably be increasedexpected to result in a normal profit; (d) Except for (i) nondisclosure agreements entered into in the ordinary course; (ii) agreements for the trial, evaluation, purchase, sale, license, distribution, maintenance or support of Company products entered into in the vesting ordinary course; (iii) agreements which require payment by or to the Company or any of benefits its Subsidiaries not in excess of $250,000; (iv) agreements which will be accelerated, do not provide for any term extension or expansion of the rights granted with respect to the Intellectual Property owned by the occurrence Company as a result of the Merger; or (v) real property leases, licenses or other occupancy agreements (collectively, "Real Property Leases") for individual properties listed in Section 3.15 of the Disclosure Schedule comprising less than 5,000 square feet, there are no contracts or agreements of the Company or any of its Subsidiaries which do not expire or which the transactions contemplated by Company may not terminate within one year after the date of this Agreement or which may be renewed at the value option of any person other than the Company so as to expire more than one year after the date of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ce) any agreement of indemnification or any guaranty other than Except for (i) any agreement of indemnification nondisclosure agreements entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) agreements for the trial, evaluation, purchase, sale, license, distribution, maintenance or support of Company products entered into in the ordinary course, neither the Company nor any indemnification obligation of its Subsidiaries has (A) any contracts or agreements with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or dealers which require payment by or to the Company or any of its Subsidiaries in excess of $250,000 and which are not cancelable by it on notice of not longer than thirty days and without liability, penalty or premium or (B) any contracts, agreements or arrangements providing for the payment of any bonus or commission based on sales or earnings, in each case where the cost to the Company Subsidiary to its officers or directorswill exceed $100,000; (df) Neither the Company nor any agreementof its Subsidiaries is in default, nor is there any known basis for any valid claim of default, under any contract made or commitment containing any covenant limiting obligation owed by it, except for such defaults that would not reasonably be likely to have, in any respect the right of aggregate, a Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rightsMaterial Adverse Effect; (eg) Neither the Company nor any agreementof its Subsidiaries has any employee to whom it is paying compensation at the annual rate of more than $200,000; (h) Neither the Company nor any of its Subsidiaries is restricted by agreement from carrying on its business in any material respect anywhere in the world by any agreement under which the Company (i) is restricted from selling, contract licensing or otherwise distributing any of its technology or products or providing services to customers or potential customers or any class of customers, including resellers or other distributors, in any geographic area, during any period of time, or in segment of any market or line of business; (ii) is required to give favored pricing to any customers or potential customers or any class of customers (that is, required to give pricing to such customers or potential customers or classes of customers that is at least as good or better to that offered to others) or to provide exclusive or favored access to any product features, excluding exclusive customizations, to any customers or potential customers or any class of customers (it being understood that agreements to provide updates, enhancements or new versions as they become available shall not be considered "favorable access," nor shall agreements to provide alpha, beta or other similar restricted release versions of products); (iii) has agreed to purchase a material minimum amount of goods or services; or (iv) has agreed to purchase goods or services exclusively from a certain party; (i) Neither the Company nor any of its Subsidiaries is under any liability or obligation with respect to the return of inventory or merchandise in the possession of wholesalers, distributors, resellers, retailers or other customers, except for such obligations or liabilities that would not reasonably be likely to have, in the aggregate, a Company Material Adverse Effect; (j) Neither the Company nor any of its Subsidiaries has any debt obligation for borrowed money (other than capital leases), including guarantees of or agreements to acquire any such debt obligation of others (other than guarantees by the Company of obligations of its Subsidiaries); (k) The Company and its Subsidiaries do not have contracts for capital expenditures exceeding $1,000,000 in the aggregate; (l) Neither the Company nor any of its Subsidiaries has any contract, agreement or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which business; (m) Neither the Company nor any of its Subsidiaries has any material contract, agreement or commitment for the purchase of any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesenterprise; (fn) Neither the Company nor any dealerof its Subsidiaries has any outstanding loan (other than any loan for employee relocation or any loan not in excess of $50,000) to any person other than to the Company or a wholly owned Subsidiary of the Company in an amount that exceeds $50,000; (o) Neither the Company nor any of its Subsidiaries has any power of attorney outstanding or any material obligations or liabilities (whether absolute, distributoraccrued, contingent or otherwise), as guarantor (other than guarantees by the Company of obligations of its Subsidiaries), surety, co-signer, endorser or co-maker in respect of any obligation of any person, corporation, partnership, joint marketing venture, association, organization or development agreement currently in force under which Company other entity, or any capital maintenance, keep-well or similar agreements or arrangements; (p) Neither the Company Subsidiary nor any of its Subsidiaries has continuing material obligations any agreements, contracts or arrangements containing any provision requiring the Company to jointly market indemnify another party (excluding indemnities contained in agreements for the trial, evaluation, purchase, sale, distribution, maintenance, support or license of products entered into in the ordinary course of business consistent with past practice and in any productReal Property Leases) or, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, other than in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow settlement agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; orAgreement with current or former officers or employees of the Company in their individual capacity, containing any covenant not to bring legal action against any third party; (kq) any other agreementThe Company has made available to Parent true, complete and correct copies of each contract or commitment that includes receipts or expenditures listed in Section 3.6 of $1,000,000 or more individually. the Disclosure Schedule (collectively, the "Material Contracts"); and (i) Neither the Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below)of its Subsidiaries has breached, is in breachdefault under, violation or has received written notice of any breach of or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, which breach or would permit any other party to seek material damages or other remedies (for any or all of such breachesdefault remains uncured, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of to the Company's knowledge, no other party to any Company Material Contract has breached or is in default of any of its obligations thereunder, which breach or default remains uncured, (iii) each Material Contract is in material breach full force and effect and (iv) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiary and each of the other parties thereto, enforceable in accordance with its terms, except that the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or material default thereunderother similar laws now or hereafter in effect relating to creditors' rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law).

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary is a party to or is bound by: (a) any employment There are no contracts, agreements or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those instruments that are terminable by Company or any Company Subsidiary on no more than thirty (30) days' notice without liability or financial obligation material to Company. (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, financial condition or (ii) any indemnification obligation results of operations of the Company or any and its Subsidiaries, taken as a whole (collectively, the "Company Subsidiary to its officers or directors; (d) any agreementMaterial Contracts"), contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets that have not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or been filed as exhibits to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into SEC Reports filed prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither The Company nor any Company Subsidiaries, nor has made available to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, the Buyer complete and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any accurate copies of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Material Contracts. Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and Material Contract is in full force and effecteffect and is enforceable in accordance with its terms, except for such failures to be in full force and effect and enforceable as would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries nor, to the Company's knowledge, any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, except for such violations and defaults as would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (b) Except as set forth in the Company SEC Reports filed prior to the date of this Agreement, neither the Company nor any of its Subsidiaries has entered into any transaction with any director, officer or other Affiliate of the Company or any of its Subsidiaries or any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K. (c) Except for field of use or territorial limits on the rights granted by third parties to the Company or its Subsidiaries set forth in the agreements or instruments granting such rights, (i) there is no non-competition or other similar agreement, commitment, judgment, injunction or order to which the Company or any of its Subsidiaries is a party or subject that has or could reasonably be expected to have the effect of prohibiting or materially impairing the conduct of the business by the Company or any of its Subsidiaries, taken as a whole, and (ii) upon neither the Company nor any of its Subsidiaries has entered into (or is otherwise bound by) any agreement under which it is restricted, in any material respects, from selling, licensing or otherwise distributing any of its technology or products, or providing its services, to customers or potential customers or any class of customers, in any geographic area, during any period of time. (d) To the Company's knowledge, neither the Company nor any of its Subsidiaries is a party to any agreement under which a third party would be entitled to receive a license or any other right to intellectual property of the Buyer or any of the Buyer's Affiliates (other than the Company and its Subsidiaries) as a result of the consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or officer, director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty days notice and which do so with no express (30whether by contract or by policy) days' notice without liability or financial obligation to Company.; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty currently in force other than (i) any agreement of indemnification entered into in connection with the sale or license or distribution or marketing of software products or services in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (f) any dealer, distributor, material joint marketing or development agreement currently in force under which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) 90 days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (g) any agreement, contract or commitment currently in force to provide source code any Company Intellectual Property to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business;that is material to Company and its subsidiaries taken as a whole; or (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative as a distributor in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individuallybusiness. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions in the Company Disclosure Letter pursuant to this Section 4.10 2.19 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither (a) Except as set forth on Section 4.19(a) of the Seller Disclosure Letter, neither the Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's ’s Board of Directors, other than those that are terminable by the Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' ’ notice without liability or financial obligation to the Company.; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Termination Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement or the Termination Agreement; (ciii) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale sale, license, distribution, reselling or license other transfer of software products in the ordinary course of business or in connection with the provision of services in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any Company Subsidiary of its subsidiaries to engage in any line of business presently conducted by the Company or any subsidiary, or to compete with any person or granting any exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesthe Company’s subsidiaries; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety sixty (9060) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which the Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company Seller or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less; (gvii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in that is material to the normal course of businessCompany and its subsidiaries taken as a whole; (hviii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company productProducts, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company productsProducts, including any parts services or components thereoftechnology, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon written notice of ninety (90) days or less and substantially in the form previously provided to Parentless; (iix) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (jx) any material settlement agreement entered into within three (3) years prior to the date of this Agreement; or (kxi) any other material agreement, contract or commitment currently in force that includes receipts is outside the ordinary course of business or expenditures that has a value of $1,000,000 50,000 or more individually. within a twelve (12) month period in any individual case. (b) Neither the Company nor any Company Subsidiariesof its subsidiaries, nor to Company's Seller’s knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither the Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 set forth in the Seller Disclosure Letter (any such agreement, contract or commitment, a "“Company Contract"”) in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Except as set forth in Section 2.18 of the Company Disclosure Letter, neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level officer, director, Company employee or member of Company's Board of Directors, or any service, operating or management agreement or arrangement with respect to any of its properties (whether leased or owned) other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company.; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products or services in or the licensing of real property in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property Intellectual Property that will not be owned, in whole or in part, by Company or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (h) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit other than trade payables incurred in the ordinary course of business; (j) any material settlement agreement entered into prior to under which the date of this AgreementCompany has ongoing obligations; or (k) any other agreement, contract or commitment that includes receipts or expenditures involving in excess of $1,000,000 100,000 being paid by or more individuallyto Company over the term thereof. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in material breach, violation or default under, and neither Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 in the Company Disclosure Letter (any such agreement, contract or commitment, a "Company ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate). Company has made available to Parent true and correct copies of any contracts between Company and its top ten customers.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary of its Subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Docent’s Board of Directors, other than those that are terminable by Company Docent or any Company Subsidiary of its Subsidiaries on no more than thirty (30) days' ’ notice without liability or financial obligation to Company.Docent; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, that would not reasonably be expected to have a Material Adverse Effect on Docent, or (ii) any indemnification obligation guaranty of the Company or any Company obligations of a Subsidiary to its officers or directorsof Docent; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Docent or any Company Subsidiary of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Docent or any Company Subsidiary of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Docent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Docent’s Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company Docent or any Company Subsidiary has of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company Docent or any Company Subsidiary has of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company Docent or Company Subsidiariesany of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of businessthat is material to Docent and its Subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Docent product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Docent products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to ParentClick2learn; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within three (3) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts that, either individually or expenditures taken together with all other contracts with the same party, (i) has in the past 12 months resulted in payments being made by Docent or revenue to Docent in excess of $1,000,000 or more individually(ii) will, if fulfilled in accordance with its terms, result in payments being made by Docent or revenue to Docent in excess of $1,000,000 in the next 12 months. Neither Company Docent nor any Company of its Subsidiaries, nor to Company's Docent’s knowledge any other party to a Company Docent Contract (as defined below), is in breach, violation or default under, and neither Company Docent nor any Company of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Docent or any Company Subsidiary of its Subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 in the Docent Schedules (any such agreement, contract or commitment, a "Company “Docent Contract"”) in such a manner as would permit any other party to cancel or terminate any such Company Docent Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company Pathlore nor any Company Subsidiary is of its Subsidiaries is, as of the date hereof, a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directorsthe Pathlore Board, other than those that are terminable by Company Pathlore or any Company Subsidiary of its Subsidiaries on no more than thirty (30) days' ’ notice without liability or financial obligation to Company.Pathlore; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, business that would not reasonably be expected to have a Material Adverse Effect on Pathlore or (ii) any indemnification obligation guaranty of the Company or any Company obligations of a Subsidiary to its officers or directorsof Pathlore; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Pathlore or any Company Subsidiary of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Pathlore or any Company Subsidiary of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Pathlore has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Pathlore’s Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company Pathlore or any Company Subsidiary has of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company Pathlore or any Company Subsidiary has of its Subsidiaries have continuing material obligations to jointly develop any intellectual property Intellectual Property that will not be owned, in whole or in part, by Company Pathlore or Company Subsidiariesany of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology Pathlore Product or any agreement, contract or commitment currently in force to sell or distribute any Company productsPathlore Product, including any parts or components thereof, service or technology except agreements with distributors or sales representative representatives in the normal ordinary course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to ParentSumTotal; (ih) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (ji) any settlement agreement entered into within three (3) years prior to the date of this AgreementAgreement with respect to which Pathlore has contingent obligations of a material nature; (j) any license, contract or commitment pursuant to which any Person is authorized to use any Pathlore Intellectual Property (other than NDAs and non-exclusive end-user agreements entered into in the ordinary course of business); (k) any license, contract or commitment pursuant to which Pathlore or any Subsidiary is authorized to use any Intellectual Property of a third party (other than NDAs and commercially available shrink wrap agreements entered into in the ordinary course of business); or (kl) any other agreement, contract or commitment that includes receipts that, either individually or expenditures taken together with all other contracts with the same party, (i) has in the 12 months preceding December 31, 2004 resulted in payments being made by Pathlore in excess of $1,000,000 50,000 (excluding payroll) or more individuallyrevenue booked by Pathlore in excess of $500,000 or (ii) will, if fulfilled in accordance with its terms, result in payments being made by Pathlore after December 31, 2004 in excess of $250,000 (excluding payroll) or revenue which will be booked by Pathlore in excess of $500,000. Neither Company Pathlore nor any Company of its Subsidiaries, nor to Company's knowledge Pathlore’s Knowledge any other party to a Company Contract (as defined below)Pathlore Contract, is in breach, violation or default under, and neither Company Pathlore nor any Company of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Pathlore or any Company Subsidiary of its Subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 in the Pathlore Schedules (any such agreement, contract or commitment, a "Company “Pathlore Contract"”) in such a manner as would permit any other party to cancel or terminate any such Company Pathlore Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company As of the date of ------------------------------------- this Agreement, neither Target nor any Company Subsidiary of its Subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyTarget's Board of Directors, other than those that are terminable by Company Target or any Company Subsidiary of its Subsidiaries on no more than thirty (30) days' 30 days notice without liability or financial obligation obligation, except to Company.the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, business where such agreement or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directorsguarantee might reasonably result in a Target Material Adverse Effect; (dc) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company Target or any Company Subsidiary of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights;person; or (ed) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Target or any Company Subsidiary of its Subsidiaries after the date of this Agreement of a any material amount of assets not in the ordinary course of business or pursuant to which Company Target has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Target's Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company Target nor any Company of its Subsidiaries, nor to CompanyTarget's knowledge any other party to a Company Target Contract (as defined below), is in breach, violation or default under, and neither Company Target nor any Company of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Target or any Company Subsidiary of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed as exceptions to this Section 4.10 in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Company Target Contract") in such a manner as would permit any other party to cancel or terminate any such Company Target Contract, or would permit any other party to seek material damages or other remedies, which cancellation, termination, damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregatewould be reasonably likely to have a Target Material Adverse Effect.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Except as otherwise set forth ------------------------------------- in Part 2.17 of the Company Disclosure Schedule, as of the date hereof neither the Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit the Company.'s or any of its subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software or hardware products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (dc) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (ed) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesthe Company's subsidiaries; (fe) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) 90 days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which the Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company or Company Subsidiaries;any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; or (gf) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any that is material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individuallyCompany and its subsidiaries taken as a whole. Neither the Company nor any Company Subsidiariesof its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither the Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions in the Company Disclosure Schedule pursuant to this clauses (a) through (f) above or pursuant to Section 4.10 2.9 hereof or are required to be filed with any Company SEC Report (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. (a) Neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board board of Directorsdirectors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company.; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions (either alone or upon the occurrence of any additional or subsequent events) contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions (either alone or upon the occurrence of any additional or subsequent events) contemplated by this Agreement; (ciii) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license or purchase of software products or services in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parentless; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither (a) As of the date hereof, except as set forth under Schedule 3.13(a) of the Company nor any Disclosure Schedule, Company Subsidiary is a not party to or is nor bound byby any: (ai) any employment or consulting agreement, contract or commitment “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by respect to Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with Company Subsidiary Annual Report on no more than thirty (30) days' notice without liability or financial obligation to Company. (b) any agreement or planForm 10-K for the year ended December 31, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased2024, or any Company SEC Documents filed after the vesting date of benefits filing of which will be accelerated, by such Form 10-K until the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreementdate hereof; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; Contract (dA) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its Subsidiaries of a material amount of assets (1) after the date of this Agreement of a material amount of assets not other than in the ordinary course of business consistent with past practice or (2) prior to the date hereof, which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of them, to result in claims in excess of $100,000 or (B) pursuant to which Company has or any of its Subsidiaries will acquire any material ownership interest in any corporation, partnership, joint venture other person or other business enterprise other than Company Company’s Subsidiaries; (fiii) collective bargaining agreement or Contract with any dealerlabor union, distributortrade organization or other employee representative body; (iv) Contract establishing any joint ventures, joint marketing partnerships or development similar arrangements; (v) Contract (A) prohibiting or materially limiting the right of Company to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating Company to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party or (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product of Company on an exclusive basis to any Person or group of Persons or in any geographical area but excluding any distribution, sales representative, sales agent or similar agreement currently in force under which Company or any has granted a Person an exclusive geographical area and under which Company Subsidiary has continuing material obligations paid commissions less than $100,000 to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, such Person in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more2024, or any material agreement from whom Company received less than $100,000 from the sale of product to said Person in 2024; (vi) Contract pursuant to which Company or any Company Subsidiary has continuing of its Subsidiaries (i) licenses any material obligations to jointly develop any intellectual property Intellectual Property from another Person that will not be owned, in whole or in part, is used by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into one of its Subsidiaries in the normal conduct of its business as currently conducted that could require payment by Company or any Subsidiary of royalties or license fees exceeding $100,000 in any twelve (12) month period or (ii) licenses Company Intellectual Property to another Person, except licenses provided to direct customers in the ordinary course of business; (hvii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or extension of creditcredit of $100,000 or more, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned subsidiaries, in each case in the ordinary course of business consistent with past practice; (jviii) Contract providing for any settlement agreement entered into prior to guaranty by Company or any of its Subsidiaries of third-party obligations (under which Company or any of its Subsidiaries has continuing obligations as of the date hereof) of $100,000 or more, other than any guaranty by Company or any of its Subsidiaries’ obligations; (ix) Contract between Company, on the one hand, and any Affiliate of Company (other than a Subsidiary of Company), on the other hand (other than a Company Plan); (x) Contract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than Company or its Subsidiaries; (xi) Contract under which Company and Company’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $100,000 during the current or a subsequent fiscal year; (xii) Employment agreement that cannot be terminated within sixty (60) days without a severance payment obligation; (xiii) Change of control bonus or other bonus agreement that will trigger a payment obligation as a result of closing this AgreementTransaction; or (kxiv) Contract to enter into any of the foregoing. (b) The Company has been given access to a true and correct copy of all written Company Material Contracts, together with all material amendments, waivers or other agreementchanges thereto. There are no oral Company Material Contracts. (c) Except as disclosed under Section 3.13(c) of the Company Disclosure Schedule, contract except as would not, individually or commitment that includes receipts in the aggregate, reasonably be expected to have a Material Adverse Effect on Company, (i) Company is not in default under any Contract listed, or expenditures required to be listed, in Section 3.13(a) of $1,000,000 or more individually. Neither the Company nor any Disclosure Schedule (each, a “Company SubsidiariesMaterial Contract” and, nor collectively, the “Company Material Contracts”), and, (ii) to Company's knowledge any ’s Knowledge, as of the date hereof, the other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any each of the material terms or conditions of any Company Material Contracts is not in default thereunder. Except as disclosed under Section 3.13(c) of the agreementsCompany Disclosure Schedule, contracts or commitments to which each Company or any Company Subsidiary Material Contract is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid legal and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or and is valid, binding and enforceable against Company and, to Company’s Knowledge, each other adverse consequenceparty thereto. To the knowledge As of the Companydate hereof, no other party to any Company Material Contract is in material breach thereof has given any written notice, or material default thereunderto the Knowledge of Company, any notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek to terminate or cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or otherwise).

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary of its material subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit Company.'s or any of its subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company or any Company Subsidiary of its material subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any material agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (f) any dealer, distributor, material joint marketing or development agreement currently in force under which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) 90 days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business;that is material to Company and its subsidiaries taken as a whole; or (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative as a distributor in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individuallybusiness. Neither Company nor any Company Subsidiariesof its material subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions in the Company Schedules pursuant to this clauses (a) through (h) above or pursuant to Section 4.10 2.9 hereof (any such agreement, contract or commitment, a "Company ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company Except as otherwise set forth ------------------------------------- in Part 3.16 of the Parent Disclosure Letter, neither Parent nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyParent's Board of Directors, other than those that are terminable by Company Parent or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company.the extent general principles of wrongful termination law may limit Parent's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification indemnification, any guaranty or any guaranty other than (i) any agreement instrument evidencing indebtedness for borrowed money by way of indemnification entered into in connection with the direct loan, sale or license of software products in the ordinary course of businessdebt securities, purchase money obligation, conditional sale, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directorsotherwise; (d) any agreement, contract obligation or commitment containing any covenant limiting in any respect the right of Company covenants purporting to limit or which effectively limit Parent's or any Company Subsidiary of its subsidiaries' freedom to engage compete in any line of business or to compete with in any person geographic area or which would so limit Parent or Surviving Corporation or any of its subsidiaries or any of their respective employees after the Effective Time or granting any exclusive distribution or other exclusive rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Parent or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesParent's subsidiaries; (f) any dealerlicensing, distributordistribution, joint marketing sponsorship, advertising, merchant program or development other similar agreement currently in force under to which Company Parent or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and one of its subsidiaries is a party which (i) may not be canceled by Parent or its subsidiaries, as the case may be, without penalty upon notice of ninety (90) 30 days or less andless, in the case of dealer, distributor or joint marketing agreements, and (ii) which involve provides for payments by or to the Company Parent or its subsidiaries in an amount in excess of $500,000 100,000 over the term of the agreement or more, which is (or any could reasonably be expected to become) material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company SubsidiariesParent; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreementtechnology; or (kh) any other agreement, contract or commitment currently in effect that includes receipts or expenditures of $1,000,000 or more individuallyis material to Parent's business as presently conducted and proposed to be conducted. Neither Company Parent nor any Company Subsidiariesof its subsidiaries, nor to CompanyParent's knowledge any other party to a Company Parent Contract (as defined below), is in breach, violation or default under, and neither Company Parent nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Parent or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions in the Parent Disclosure Letter pursuant to this clauses (a) through (h) above or pursuant to Section 4.10 3.11 hereof or are required to be filed with any Parent SEC Report (any such agreement, contract or commitment, a "Company Parent Contract") in such a manner as would permit any other party to cancel or terminate any such Company Parent Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.). The agreements listed on Part 3.16(i) Each Company Contract: (i) is valid and binding on of the Company or its Subsidiaries, as the case may be andParent Disclosure Letter have, to Parent's knowledge, been executed by each party thereto in the knowledge of the form provided to Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary (a) Except as set forth on Schedule 4.11, no Seller is a party to or and no Seller is bound byby any of the following in connection with the Business: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directorsindividual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other than those that are terminable by Company or any Company Subsidiary on no more than thirty (30) days' notice without liability or financial obligation to Company. (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreementorganization; (cii) any fidelity or surety bond or completion bond; (iii) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directorsguaranty; (div) any agreementpurchase order or contract for the purchase of materials involving $2,000, contract individually, or commitment containing any covenant limiting $20,000 in any respect the right of Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rightsaggregate; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributordistribution, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (kvi) any other agreement, contract or commitment that includes receipts or expenditures of involves $1,000,000 5,000 or more individually. Neither Company nor any Company Subsidiariesor is not cancelable without penalty within thirty (30) days. (a) No Seller has breached, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it such Seller has breached, violated or defaulted under, any of the material terms or conditions of any of the agreementsagreement, contracts contract or commitments commitment to which Company or any Company Subsidiary such Seller is a party or by which it such Seller is bound that are required with respect to be disclosed as exceptions to this Section 4.10 (any the Business or the Acquired Assets. Each such agreement, contract or commitmentcommitment is in full force and effect. Each Seller is in compliance with, and no Seller has breached any contract, license or agreement to which such Seller is a "Company Contract") in party or by which such a manner as would permit any other party Seller is bound with respect to cancel the Business or terminate any such Company Contractthe Acquired Assets or by which the assets of the Business are bound, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Companyeach Seller, on the all other parties theretoto all such contracts, licenses and agreements are in compliance with, and have not breached any of such contracts, licenses or agreements. Following the Closing, Buyer will be permitted to exercise all of each Seller's rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which, such Seller would otherwise be required to pay. (a) The contracts, licenses and agreements listed on Schedule 4.11(b) are all contracts, licenses and agreements, to which each Seller is a party which still require performance of services or other obligations, including without limitation, indemnification, non-compete and non-disclosure obligations, delivery of materials or ongoing royalties or similar payments, either by a Seller or to the benefit of a Seller, other than "shrink wrap" and similar commercial end-user licenses. The contracts, licenses and agreements listed on Schedule 4.11(b) are in full force and effect. Provided that any necessary consents to assignment have been obtained, and (ii) upon the consummation of the transactions contemplated by this AgreementAgreement will neither violate nor result in the breach, shall continue in full force and effect without penalty modification, cancellation, termination, or other adverse consequence. To the knowledge suspension of the Companycontracts, no other party to any Company Contract is in material breach thereof or material default thereunderlicenses and agreements listed on Schedule 4.11(c).

Agreements, Contracts and Commitments. Neither Except as set forth in the Company Schedules, neither the Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit the Company.'s or any of its subsidiaries' ability to terminate employees at will and except for potential liabilities for future actions by the Company to the extent covered by the WARN Act; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan, stock purchase plan or restricted stock purchase planagreement, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any business other than indemnification obligation of agreements between the Company or any Company Subsidiary to of its subsidiaries and any of its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount portion of the assets not in of the ordinary course of business Company and its subsidiaries or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries;enterprise; or (f) any dealer, distributor, material joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither the Company nor any Company Subsidiariesof its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 of the type described in clauses (a) through (f) above (any such agreement, contract or commitment, as well as any agreement, contract or commitment that is an exhibit to any Company SEC Report, a "Company ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.would

Agreements, Contracts and Commitments. Neither Company (a) Except as would not be material to the HDD Business, neither Parent nor any Company Subsidiary of its Subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's the Board of DirectorsDirectors of Parent, other than those that are terminable by Company Parent or any Company Subsidiary of its Subsidiaries on no more than thirty (30) days' notice without liability Liability or financial obligation to Company.Parent; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ciii) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products or services in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Parent or any Company Subsidiary of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Parent or any Company Subsidiary of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company its Subsidiaries;; or (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;. (jb) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company Parent nor any Company of its Subsidiaries, nor to Company's the knowledge of Parent any other party to a Company Parent Contract (as defined below), is in breach, violation or default under, and neither Company Parent nor any Company of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Parent or any Company Subsidiary of its Subsidiaries is a party or by which it Parent or any of its Subsidiaries is bound that are required to be disclosed as exceptions in the Parent Schedules pursuant to this Section 4.10 Agreement (any such agreementagreements, contract contracts or commitment, a commitments are "Company ContractParent Contracts") in such a manner as would permit any other party to cancel or terminate any such Company Parent Contract, or would permit any other party to seek material damages or other material remedies (for any or all of such breaches, violations or defaults, or all of them in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary is a party to or is bound by: (aSection 3.01(bb) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary on no more than thirty (30) days' notice without liability or financial obligation to Company. (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or Disclosure Schedule lists all Contracts, commitments and understandings of any Company Subsidiary kind to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect which the right of Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company its Subsidiary is a party or by or to which it the Company, its Subsidiary or any of their respective properties or assets is bound that are required or subject, whether or not in writing, (i) which is material to the continued conduct of the business of the Company and its Subsidiary as currently conducted or as currently contemplated to be disclosed as exceptions conducted; (ii) which is with respect to this Section 4.10 the Company's San Diego facility contract services business and under which the Company has any current or future obligation to provide any products or services; (any such agreement, contract iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or commitment, a "Company Contract") future payment obligations on either party in such a manner as would permit any other party to cancel excess of $125,000 annually or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, $250,000 in the aggregate.; (iv) Each Company Contract: (i) is valid and binding which includes any non-competition, non-solicitation, standstill or similar restrictions or undertakings on the Company or its SubsidiariesSubsidiary; (v) pursuant to which the Company or its Subsidiary has directly or indirectly guaranteed indebtedness, as liabilities or obligations of any other Person or pursuant to which any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the case may Company or its Subsidiary; (vi) which provides for any mortgage, pledge, security agreement, deed of trust or other instrument or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights of the Company or its Subsidiary or any other material assets or group of assets of the Company or its Subsidiary; or (vii) which is not terminable by the Company or its Subsidiary by notice of not more than 30 days without the payment of any material penalty or premium. Each Contract, commitment or understanding required to be listed in Section 3.01(bb) of the Company Disclosure Schedule (collectively, the "Company Material Contracts") is in full force and effect and is enforceable against the Company or its Subsidiary (and, to the knowledge of the Company, on against the other parties thereto) in accordance with its terms, and is in full force and effectexcept that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (iiz) upon consummation of general equitable principles. Neither the transactions contemplated by this AgreementCompany nor its Subsidiary nor, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of to the Company's knowledge, no any other party to any Company Material Contract is in material breach thereof violation of or material in default thereunderunder (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, which in each case would reasonably be expected to materially impair the benefits expected to be derived therefrom.

Agreements, Contracts and Commitments. Neither (a) Schedule 2.7(a) identifies, and the Company nor has made available to Buyer via the virtual data room, true, complete and correct copies of each of the following Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party to or is bound by:(each, a “Company Material Contract” and, collectively, the “Company Material Contracts”): (ai) any employment agreement or consulting any other agreement, contract or commitment with (other than standard offer letters sent in the Ordinary Course of Business and At-Will Employee Contracts) pursuant to which the Company or any of its Subsidiaries is or may become obligated to pay compensation or benefits to any employee, executive officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by the Company or any of its Subsidiaries; (ii) any Contract that contains a non-competition provision that (A) prohibits or materially limits (or would materially limit after the date hereof) the freedom or ability of the Company Subsidiary or any of its Subsidiaries to engage in any type of business in any geographic area, or (B) creates any exclusive relationship; (iii) any Contract to which the Company or any of its Subsidiaries is a party (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities of any of the Company or any of its Subsidiaries, (B) providing any Person with any preemptive right or any similar right with respect to any securities of any of the Company or any of its Subsidiaries, or (C) providing the Company or any of its Subsidiaries with any right of first refusal with respect to, or right to repurchase or redeem, any securities of the Company or any of its Subsidiaries; (iv) any Contract (or group of related agreements with the same third parties) under which the Company or any of its Subsidiaries created, incurred, assumed or guaranteed any Debt or hedge transaction in excess of $1,000,000; (v) any Contract that contemplates or involves the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries in an amount or having a value in excess of $1,000,000 in the aggregate, or contemplates or involves the performance of services or sale of goods by or to the Company or any of its Subsidiaries having a value in excess of $1,000,000 in the aggregate; (vi) the Organizational Documents of the Company and its Subsidiaries and any other partnership, limited liability company, joint venture or other similar agreement that is material to the Company and its Subsidiaries and any Contract which provides for the sharing of any profits with the Company or any Subsidiary; (vii) consulting, agency or advertising Contracts related to the Assets or the Businesses of the Company or any of its Subsidiaries, and involving payment to or by the Company or any of its Subsidiaries in excess of $500,000, except for such Contracts that are cancelable on no not more than thirty (30) days' ’ notice without liability by the Company or financial obligation to Company. (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, its Subsidiaries without penalty or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreementincreased cost; (cviii) any agreement Contracts relating to acquisition, sale or use of indemnification Intellectual Property, whether the Company or any guaranty other than of its Subsidiaries is the licensor or licensee thereunder (ibut excluding off-the-shelf or prepackaged software license agreements) having a value in excess of, or under which the Company or Subsidiary is obligated to pay or is entitled to receive amounts in excess of $100,000 annually; (ix) Contracts for the purchase or sale of any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, corporation, partnership, joint venture, association or (ii) other business organization or any indemnification obligation division, operating unit or product line of the Company or any Company Subsidiary to of its officers Subsidiaries or directorsAssets other than current Assets with a purchase price in excess of $500,000; (dx) any agreement, contract Contract granting another Person an option to purchase or commitment containing any covenant limiting in any respect sell (A) personal property or Assets of the right of Company or any Company Subsidiary to engage of its Subsidiaries having a value in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company excess of $500,000 or more, or (B) any material agreement interest in Owned Real Property; (xi) Contracts pursuant to which the Company or any Company Subsidiary has continuing material agrees to indemnify any Person or guaranty the obligations or performance of any Person, which indemnification or guaranty obligation is reasonably likely to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesexceed $500,000; (gxii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any group of the material terms or conditions of any of the agreements, contracts or commitments related Contracts) pursuant to which the Company or any of its Subsidiaries has committed to purchase fixed Assets or real property having an aggregate value in excess of $1,000,000; and (xiii) any Contract with sales representatives or distributors to which the Company Subsidiary or any of its Subsidiaries is a party or by which it party, other than At-Will Sales Rep Contracts. Each Material Contract is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on agreement of the Company or one of its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, Subsidiaries and is in full force and effect, and (ii) upon consummation neither the Company nor any of its Subsidiaries is in material breach of or default under, or has received in writing any claim or threat that it is currently in material breach of or default under, any of the transactions contemplated by this Agreementterms or conditions of any Company Material Contract and there does not exist any event or condition that, shall continue in full force and effect without penalty with notice or other adverse consequencelapse of time, or both, could constitute a material breach of or default under any Material Contract. Neither the Company nor any of its Subsidiaries has received notice of a claim for indemnification under any Company Material Contract. To the knowledge of the Company, no other party to any Company Contract such contract is in default thereof in any material breach thereof or material default thereunderrespect.

Agreements, Contracts and Commitments. Neither Company Except as set forth in ------------------------------------- the OSI Disclosure Letter, neither OSI nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any collective bargaining agreements; (b) any agreements or arrangements that contain any severance pay or postemployment liabilities or obligations other than OSI Employee Plans; (c) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements other than OSI Employee Plans; (d) any employment or consulting agreement, contract or binding commitment with any officer or director or higher level employee or member of Company's Board of Directorsemployee, other than those that are not terminable by Company OSI or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation to Company.liability; (be) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (cf) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any business other than indemnification obligation of the Company agreements between OSI or any Company Subsidiary to of its subsidiaries and any of its officers or directors; (dg) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company OSI or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rightsperson; (eh) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $250,000 and not cancelable at will without penalty; (i) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesenterprise; (fj) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (jk) any settlement joint marketing or development agreement, distribution agreement entered into prior to the date of this Agreementor royalty agreement; or (kl) any other agreement, contract or commitment that includes receipts (excluding real and personal property leases) which require payment by OSI or expenditures any of its subsidiaries under any such agreement, contract or commitment of $1,000,000 250,000 or more individuallyin the aggregate and is not cancelable without penalty within thirty (30) days other than purchase order commitments for inventory in the ordinary course of business and consistent with past practices. Neither Company OSI nor any Company Subsidiariesof its subsidiaries, nor to CompanyOSI's knowledge any other party to a Company an OSI Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary OSI is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, a an "Company OSI Contract") in such a manner as would permit any other party to cancel or terminate any such Company OSI Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breachesdamages, violations or defaults, in the aggregatewhich would have a Material Adverse Effect on OSI.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. (a) Neither the Company nor any Company Subsidiary of its Subsidiaries is a party to or is bound by: (ai) any written employment or consulting agreement, contract or commitment with any officer or director or higher level employee officer, director, Employee or member of Company's Board of Directorsthe Company Boards, or any service, operating or management agreement, other than those that are terminable by the Company or any Company Subsidiary of its Subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company. (b) any agreement the Company or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreementits Subsidiaries; (cii) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with a Lease in respect of real property not situated in Israel for the benefit of the landlord and its mortgage or in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of business consistent with past practice pursuant to the Company's standard form agreement previously delivered by the Company or any Company Subsidiary to its officers or directorsthe Buyer; (diii) any agreement, contract or commitment material Contract containing any covenant limiting in any respect the right of the Company or any Company Subsidiary of its Subsidiaries to engage in any line of business or to compete with any person or entity or granting any exclusive distribution rights; (eiv) any agreement, contract or commitment Contract currently in force relating to the disposition or acquisition by the Company or any Company Subsidiary of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesthe Subsidiaries of the Company; (fv) any dealer, distributor, joint marketing or development agreement Contract currently in force under which the Company or any Company Subsidiary has of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which the Company or any Company Subsidiary has of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company or Company Subsidiariesany of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gvi) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment Contract currently in force to license any third party to manufacture or reproduce any Company product, service or technology of the Company or any agreement, contract of its Subsidiaries or commitment any Contract currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology of the Company or any of its Subsidiaries except agreements with distributors or sales representative representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parentthe Buyer; (ivii) any Contract currently in force to provide source code or design specifications to any third party for any product or technology that is material to the Company and its Subsidiaries taken as a whole; (viii) any mortgages, indentures, guarantees, other Encumbrances, loans or credit agreements, security agreements or other agreements or instruments relating to to, or securing, the borrowing of money or extension of creditcredit (other than mortgages made by a landlord under a Lease to which mortgage the Company is not a party but the Lease may be subject); (jix) any material settlement agreement entered into prior to under which the date of this Agreement; orCompany has ongoing obligations. (kb) any other agreementOther than Leases, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither neither the Company nor any Company Subsidiariesof its Subsidiaries nor, nor to the Company's knowledge knowledge, any other party to a Company Contract (as defined below)Contract, is in breach, violation or default under, and neither the Company nor any Company of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") Contract in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.), subject to the representations and warranties contained in Section 3.13, including without limitation, Section 3.13(c). The Company has made available to the Buyer true and correct copies of any Contracts (excluding purchase orders) Each Company Contract: (i) is valid and binding on the Company and its Subsidiaries may have with its top ten customers measured by revenue. (c) Neither the Company nor any of its Subsidiaries is restricted by agreement from carrying on its business anywhere in the world. (d) Neither the Company nor any of its Subsidiaries has any power of attorney outstanding or its Subsidiariesany obligations or liabilities (whether absolute, accrued, contingent or otherwise), as the case may be andguarantor, to the knowledge surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the Companyobligation of any Person, on the other parties theretocorporation, and is in full force and effectpartnership, and (ii) upon consummation of the transactions contemplated by this Agreementjoint venture, shall continue in full force and effect without penalty association, organization or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunderentity.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level officer, director, Company employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company.; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any material agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any material agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesany of its subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of businessthat is material to Company and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures has a value of $1,000,000 500,000 or more individually. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 in the Company Schedule (any such agreement, contract or commitment, a "Company ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither As of the date hereof, neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyParent's Board of Directors, other than those that are terminable by Company Parent or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company.Parent, (ii) any such agreement, contract or commitment with any employee, consultant, stockholder or other person that will result in any obligation of Parent or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or stockholder of Parent pursuant to which Parent has loaned or is obligated to loan any money thereto or (iv) any arrangement or agreement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Parent or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale third party indebtedness or license of software products in the ordinary course obligations of businessofficers, directors, employees or (ii) any indemnification obligation agents of the Company or any Company Subsidiary to its officers or directorsParent; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Parent or any Company Subsidiary of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any exclusive person any interest in Parent's distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Parent or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesParent's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement contract containing exclusivity provisions pursuant to which Company Parent has agreed not to purchase the goods (other than local grocery products) or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be ownedservices of, in whole or in partenter into a commercial relationship with, by Company or Company Subsidiariesanother person; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any settlement agreement entered into prior agreement, contract or commitment obligating Parent to make any payments based on (i) the date number of this Agreementusers accessing any website operated by Parent or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (k) any other agreement, contract or commitment that includes receipts or expenditures involves remaining obligations of Parent of $1,000,000 5,000,000 or more individually. Neither Company Parent nor any Company Subsidiariesof its subsidiaries, nor to CompanyParent's knowledge any other party to a Company Parent Contract (as defined below), is in breach, violation or default under, and neither Company Parent nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Parent or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 in the Parent Schedules (any such agreement, contract or commitment, a "Company Parent Contract") in such a manner as would permit any other party to cancel or terminate any such Company Parent Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither As of the date of this Agreement, except as set forth in Section 2.18 of the Company Schedule, neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director employee of Company or higher level employee any of its subsidiaries or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without material liability or financial obligation to Company.; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty pursuant to which Company may have liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $100,000, other than (i) any agreement of indemnification entered into in connection with the sale of products or license of software products technology in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without material penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesany of its subsidiaries and which may not be canceled without material penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of businessthat is material to Company and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology Product or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology Products except agreements with distributors or sales representative representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Company or any of its subsidiaries or extension of creditcredit (other than customer accounts receivable owing to Company or any of its subsidiaries created in the ordinary course of business and payable or dischargeable in accordance with customary trade terms); (j) any material settlement agreement entered into prior under which Company or any of its subsidiaries has ongoing obligations; (k) any agreement, contract or commitment under which Company is committed to provide products or services at a later date at a fixed price; (l) any other agreement, contract or commitment not otherwise disclosed in Section 2.18 of the date Company Schedule that calls for the payment by Company or any of this Agreementits subsidiaries of $100,000 or more in any calendar year; (m) any agreement not otherwise disclosed in Section 2.18 of the Company Schedule under which the consequences of a default could reasonably be expected to have a Material Adverse Effect on Company and its subsidiaries, taken as a whole; or (kn) any other agreement, contract or commitment that includes receipts is of the nature required to be filed by Company as an exhibit to an Annual Report on Form 10-K under the Exchange Act. Company has delivered or expenditures made available to Parent a correct and complete copy of $1,000,000 or more individuallyeach Company Contract (as defined below) as amended through the date of this Agreement. Each Company Contract, with respect to Company and any relevant subsidiary and, to Company's knowledge, all other parties thereto, is legal, valid, binding, enforceable and in full force and effect in all respects, except to the extent that any such invalidity would not reasonably be expected to be material to Company. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below)Contract, is in breach, violation or default under, and neither under a Company Contract. Neither Company nor any Company Subsidiaries of its subsidiaries has received written notice within the last twelve months that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions in the Company Schedule pursuant to this Section 4.10 2.18 (any such agreement, contract or commitment, a ("Company ContractCOMPANY CONTRACT")) in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary Except as set forth in Schedule 2.17, as of the date hereof, DSNC is not a party to or to, is not bound by, and none of its properties are subject to: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee officer, employee, consultant or member of CompanyDSNC's Board of Directors, other than those that are terminable by Company or any Company Subsidiary DSNC on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company.the extent general principles of wrongful termination law may limit DSNC's ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, or pursuant to which any amounts may become payable (whether currently or in the future) to current or former employees, consultants, officers and directors of DSNC by the occurrence of any of the transactions contemplated by this Agreement Agreement, or the value of any of the benefits of which will be calculated on the basis of or in connection with any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) business other than indemnification agreements between DSNC and any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company or any Company Subsidiary DSNC to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesenterprise; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesforce; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than technology, except for (i) any 18 24 agreement, contract or commitment pursuant to which source code is provided for maintenance of the source code or for development of modifications thereto only, and not for distribution of source or object code to third parties and (ii) any source code escrow agreements or other similar arrangements agreement entered into in the normal ordinary course of businessbusiness that contains provisions relating to the release of source code if DSNC ceases to do business or fails to provide appropriate maintenance; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company DSNC product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgagescontinuing contract for the future purchase, indenturessale or manufacture of products, guaranteesmaterial, loans supplies, equipment or credit agreements services requiring payment to or from DSNC in an amount in excess of $25,000 per annum which is not terminable on 30 days' or less notice without cost or other agreements liability at or instruments at any time after the Effective Time or in which DSNC has granted or received manufacturing rights, most favored nation pricing provisions relating to the borrowing any product, group of money products or extension of creditterritory; (j) any settlement agreement entered into prior to contract providing for the date development of this Agreement; orsoftware (other than contracts with consultants) for, or license of software to, DSNC, which software is used or incorporated in any DSNC Product (as defined in Section 2.26); (k) any other indenture, mortgage, promissory note, loan agreement, contract guarantee or other agreement or commitment that includes receipts for the borrowing of money, for a line of credit or expenditures for a leasing transaction of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are type required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") capitalized in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all accordance with Statement of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge Financial Accounting Standards No. 13 of the CompanyFinancial Accounting Standards Board; or (l) any written agreement regarding intercompany loans, on the other parties theretorevenue or cost sharing, and is in full force and effectownership or license of DSNC IP Rights, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty intercompany royalties or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof dividends or material default thereundersimilar matters.

Agreements, Contracts and Commitments. Neither As of the date hereof, neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company., (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale third party indebtedness or license of software products in the ordinary course obligations of businessofficers, directors, employees or (ii) any indemnification obligation agents of the Company or any Company Subsidiary to its officers or directorsCompany; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any exclusive person any interest in Company's distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force containing exclusivity provisions pursuant to provide source code which Company has agreed not to any third party for any product or technology purchase the goods (other than source code escrow agreements local grocery products) or other similar arrangements entered services of, or enter into in the normal course of businessa commercial relationship with, another person; (hg) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (jh) any settlement agreement entered into prior relating to the date of this Agreement; orany claim or suit; (ki) any other real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment that includes receipts or expenditures obligating Company to make any payments based on (i) the number of $1,000,000 or more individually. Neither Company nor users accessing any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which website operated by Company or any Company Subsidiary is a party of its subsidiaries (whether measured by registrations, click-throughs or purchases by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract users) or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated revenues generated by this Agreement, shall continue in full force and effect without penalty purchases on any such website; or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.(

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary of its Subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Click2learn’s Board of Directors, other than those that are terminable by Company Click2learn or any Company Subsidiary of its Subsidiaries on no more than thirty (30) days' ’ notice without liability or financial obligation to Company.Click2learn; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, that would not reasonably be expected to have a Material Adverse Effect on Click2learn, or (ii) any indemnification obligation guaranty of the Company or any Company obligations of a Subsidiary to its officers or directorsof Click2learn; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Click2learn or any Company Subsidiary of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Click2learn or any Company Subsidiary of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Click2learn has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Click2learn’s Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company Click2learn or any Company Subsidiary has of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company Click2learn or any Company Subsidiary has of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company Click2learn or Company Subsidiariesany of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of businessthat is material to Click2learn and its Subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Click2learn product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Click2learn products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to ParentDocent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within three (3) years prior to the date of this AgreementAgreement with respect to which Click2learn has contingent obligations of a material nature; or (k) any other agreement, contract or commitment that includes receipts that, either individually or expenditures taken together with all other contracts with the same party, (i) has in the past 12 months resulted in payments being made by Click2learn or revenue to Click2learn in excess of $1,000,000 or more individually(ii) will, if fulfilled in accordance with its terms, result in payments being made by Click2learn or revenue to Click2learn in excess of $1,000,000 in the next 12 months. Neither Company Click2learn nor any Company of its Subsidiaries, nor to Company's Click2learn’s knowledge any other party to a Company Click2learn Contract (as defined below), is in breach, violation or default under, and neither Company Click2learn nor any Company of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Click2learn or any Company Subsidiary of its Subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 in the Click2learn Schedules (any such agreement, contract or commitment, a "Company “Click2learn Contract"”) in such a manner as would permit any other party to cancel or terminate any such Company Click2learn Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither As of the date hereof, except as provided in Company Schedule 2.17, neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company., (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, warrant agreement, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company, except as provided for in Company's Articles of Incorporation or Bylaws, or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale third party indebtedness or license of software products in the ordinary course obligations of businessofficers, directors, employees or (ii) any indemnification obligation agents of the Company or any Company Subsidiary to its officers or directorsCompany; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any exclusive person any interest in Company's distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force containing exclusivity provisions pursuant to provide source code which Company has agreed not to any third party for any product purchase the goods or technology other than source code escrow agreements services of, or other similar arrangements entered enter into in the normal course of businessa commercial relationship with, another person; (hg) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (jh) any settlement agreement entered into prior relating to the date of this Agreementany claim or suit; (i) any real property lease covering more than 5,000 square feet; or (kj) any other agreement, lease, contract or commitment that includes receipts or expenditures involves remaining obligations of Company of $1,000,000 10,000 or more individually. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 in the Company Schedules (any such agreement, contract or commitment, a "Company ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company Parent nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or executive officer, director or higher level employee or member of CompanyParent's Board of Directors, other than those that are terminable by Company Parent or any Company Subsidiary of its subsidiaries on no more than thirty days notice and which do so with no express (30whether by contract or by policy) days' notice without liability or financial obligation to Company.Parent; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ciii) any agreement of indemnification or any guaranty currently in force other than (i) any agreement of indemnification entered into in connection with the sale or license or distribution or marketing of software products or services in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (div) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company Parent or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rightsbusiness; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Parent or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement's subsidiaries; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company Parent nor any Company Subsidiariesof its subsidiaries, nor to CompanyParent's knowledge any other party to a Company Parent Contract (as defined below), is in breach, violation or default under, and neither Company Parent nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Parent or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions in the Parent Disclosure Schedule pursuant to this Section 4.10 3.19 (any such agreement, contract or commitment, a "Company ContractPARENT CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Parent Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company Except as described in Schedule 2.17, neither Target Corporation nor any Company Subsidiary of Target Corporation is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary on no more than thirty (30) days' notice without liability or financial obligation to Company. (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any written or oral contract, agreement or commitment which involves or may involve aggregate future payments (whether in payment of indemnification a debt, as a result of a guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than purchase orders for the purchase or sale of goods and/or services entered into in connection with the sale or license of software products by Target Corporation in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any employment agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any non-competition agreement, contract any loan or commitment currently in force relating to the disposition credit agreement, security agreement, indenture, mortgage, pledge or acquisition by Company other instrument evidencing indebtedness (other than equipment purchases or any Company Subsidiary after the date of this Agreement of a material amount of assets not lease agreements entered into in the ordinary course of business business), or pursuant to which Company has any material ownership interest in any corporationsales representative, alliance, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributorventure, joint marketing operating or development similar agreement. The Target Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement currently listed in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract Schedule 2.17 (as defined below), is in breach, violation or default under, amended to date) and neither Company nor any Company Subsidiaries has received a written notice that it has breached, violated or defaulted under, any of summary setting forth the material terms or and conditions of any of the agreements, contracts or commitments each oral agreement referred to which Company or any Company Subsidiary is a party or by which it is bound that are required in Schedule 2.17. With respect to be disclosed as exceptions to this Section 4.10 (any each such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (iA) the agreement is valid and binding on the Company Enforceable against Target Corporation or its Subsidiaries, as the case may be and, be; (B) to the knowledge Knowledge of Target Corporation, the Company, on agreement will continue to be Enforceable against the other parties thereto, and is in full force and effect, and (ii) upon thereto following the consummation of the transactions contemplated by this Agreementhereby; (C) neither Target Corporation nor any Subsidiary of Target Corporation is in breach under any material provision of or is not in default in any material respect under the terms of, shall continue any such contract, agreement or commitment described in full force Schedule 2.17, and effect without penalty or other adverse consequence. To to the knowledge Knowledge of the CompanyTarget Corporation, no other event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default by Target Corporation or its Subsidiaries, or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target Corporation, no third party to any Company Contract is in material breach thereof of or material in default thereunderunder the terms of any such contract, agreement or commitment, or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Corporation, no party has repudiated any provision of any such contract, agreement or commitment.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level officer, director, Company employee currently earning an annual salary in excess of (U.S.) $55,000 or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company.; (b) any agreement or plan, including, without limitation, any stock option plan, stock shares appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any material agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any material agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of businessthat is material to Company and its subsidiaries taken as a whole; (h) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other written agreements or instruments relating to the borrowing of money or extension of credit; (j) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures has a value of (U.S.) $1,000,000 22,000 or more individually. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 in the Company Schedule (any such agreement, contract or commitment, a "Company ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Except as otherwise set forth in Part 2.16 of the Company Schedules, as of the date hereof neither the Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit the Company.'s or any of its subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant materially limiting in any respect the right of the Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (ec) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesthe Company's subsidiaries that is material to the Company's business as currently conducted; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (gd) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any that is material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money Company and its subsidiaries taken as a whole; or extension of credit; (j) any settlement agreement entered into prior to Neither the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither the Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions in the Company Schedules pursuant to this clauses (a) through (d) above or pursuant to Section 4.10 2.9 hereof or are required to be filed with any Company SEC Report (any such agreement, contract or commitment, a "Company ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company Except as otherwise set forth in the Launch Disclosure Schedules, neither Launch nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyLaunch's Board of Directors, other than those that are terminable by Company Launch or any Company Subsidiary of its subsidiaries on no more than thirty (30) 30 days' notice without liability or financial obligation obligation, except to Company.the extent general principles of wrongful termination law may limit Launch's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in outside the ordinary course of business, or (ii) any indemnification obligation of the Company Launch's business or any Company Subsidiary to its officers or directorsguaranty; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Launch or any Company Subsidiary of its subsidiaries or a Joint Venture to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Launch or any Company Subsidiary of its subsidiaries or a Joint Venture after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Launch has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesLaunch's subsidiaries or a Joint Venture; (f) any dealerlicensing, distributordistribution, joint marketing sponsorship, advertising, merchant program, encoding services, hosting or development other similar agreement currently in force under to which Company Launch or any Company Subsidiary has continuing material obligations to jointly market any product, technology one of its subsidiaries or service and a Joint Venture is a party which may not be canceled by Launch or its subsidiaries or a Joint Venture, as the case may be, without penalty in excess of $10,000 upon notice of ninety (90) 30 days or less and, in the case of dealer, distributor or joint marketing agreements, which involve provides for payments by Launch or its subsidiaries or a Joint Venture in an amount in excess of $10,000 over the term of the agreement or to the Company Launch or its subsidiaries or a Joint Venture in an amount in excess of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries100,000 over the term of the agreement; (g) any agreement, contract or commitment currently in force to license or provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreementtechnology; or (kh) any other agreement, contract or commitment currently in effect that includes receipts or expenditures of $1,000,000 or more individuallyis material to Launch's business as presently conducted. Neither Company Launch nor any Company Subsidiariesof its subsidiaries, nor to CompanyLaunch's knowledge any Joint Venture or any other party to a Company Launch Contract (as defined below), is in breach, violation or default under, and neither Company Launch nor any Company Subsidiaries of its subsidiaries nor, to the knowledge of Launch, any Joint Venture has received written notice (or to its knowledge, any other form of notice) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Launch or any Company Subsidiary of its subsidiaries or a Joint Venture is a party or by which it is bound that are required to be disclosed as exceptions in the Launch Disclosure Schedules pursuant to this clauses (a) through (h) above or pursuant to Section 4.10 3.9 hereof (any such agreement, contract or commitment, a "Company ContractLAUNCH CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, Launch Contract or would permit any other party to seek material damages or other remedies (for any or all the effect of such breaches, violations or defaults, in the aggregatewhich would have a Material Adverse Effect on Launch.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Except as set forth on the Company Disclosure Schedule, neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or executive officer, director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty days notice and which do so with no express (30whether by contract or by policy) days' notice without liability or financial obligation to Company.; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase planplan (except for those described in Section 2.3 of the Company Disclosure Schedule), any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty currently in force other than (i) any agreement of indemnification entered into in connection with the sale or license or distribution or marketing of software products or services in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rightsbusiness; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this AgreementCompany's subsidiaries; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions in the Company Disclosure Schedule pursuant to this Section 4.10 2.19 (any such agreement, contract or commitment, a "Company ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company Except as otherwise set forth in the Launch Disclosure Schedules, neither Launch nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyLaunch's Board of Directors, other than those that are terminable by Company Launch or any Company Subsidiary of its subsidiaries on no more than thirty (30) 30 days' notice without liability or financial obligation obligation, except to Company.the extent general principles of wrongful termination law may limit Launch's or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in outside the ordinary course of business, or (ii) any indemnification obligation of the Company Launch's business or any Company Subsidiary to its officers or directorsguaranty; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Launch or any Company Subsidiary of its subsidiaries or a Joint Venture to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Launch or any Company Subsidiary of its subsidiaries or a Joint Venture after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Launch has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesLaunch's subsidiaries or a Joint Venture; (f) any dealerlicensing, distributordistribution, joint marketing sponsorship, advertising, merchant program, encoding services, hosting or development other similar agreement currently in force under to which Company Launch or any Company Subsidiary has continuing material obligations to jointly market any product, technology one of its subsidiaries or service and a Joint Venture is a party which may not be canceled by Launch or its subsidiaries or a Joint Venture, as the case may be, without penalty in excess of $10,000 upon notice of ninety (90) 30 days or less and, in the case of dealer, distributor or joint marketing agreements, which involve provides for payments by Launch or its subsidiaries or a Joint Venture in an amount in excess of $10,000 over the term of the agreement or to the Company Launch or its subsidiaries or a Joint Venture in an amount in excess of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries100,000 over the term of the agreement; (g) any agreement, contract or commitment currently in force to license or provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreementtechnology; or (kh) any other agreement, contract or commitment currently in effect that includes receipts or expenditures of $1,000,000 or more individuallyis material to Launch's business as presently conducted. Neither Company Launch nor any Company Subsidiariesof its subsidiaries, nor to CompanyLaunch's knowledge any Joint Venture or any other party to a Company Launch Contract (as defined below), is in breach, violation or default under, and neither Company Launch nor any Company Subsidiaries of its subsidiaries nor, to the knowledge of Launch, any Joint Venture has received written notice (or to its knowledge, any other form of notice) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Launch or any Company Subsidiary of its subsidiaries or a Joint Venture is a party or by which it is bound that are required to be disclosed as exceptions in the Launch Disclosure Schedules pursuant to this clauses (a) through (h) above or pursuant to Section 4.10 3.9 hereof (any such agreement, contract or commitment, a "Company Launch Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, Launch Contract or would permit any other party to seek material damages or other remedies (for any or all the effect of such breaches, violations or defaults, in the aggregatewhich would have a Material Adverse Effect on Launch.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Except as set forth in Section 2.16 and Section 2.2(b) of the Company nor any Disclosure Letter, the Company Subsidiary is not a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's ’s Board of Directors, other than those that are terminable by the Company or any Company Subsidiary on no more than thirty (30) days' days notice without liability or financial obligation to Company.obligation; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any business other than indemnification obligation of agreements between the Company or and any Company Subsidiary to of its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries;enterprise; or (f) any dealer, distributor, material joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any productagreement. The Company, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's ’s knowledge any other party to a Company Contract (as defined belowherein), is in breachhas breached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 of the type described in clauses (a) through (f) above (any such agreement, contract or commitment, a "Company Contract"“COMPANY CONTRACT”) in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek damages, which would be reasonably likely to be material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. (a) Neither the Company nor any Company Subsidiary is a party of its Subsidiaries has any agreements, contracts or commitments (including but not limited to end user license agreements) that (i) resulted in or is bound by: will result in (aA) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable payments by the Company or its Subsidiaries during either fiscal year 2002 or fiscal year 2003 (up to the date of this Agreement) or (B) payments to the Company or its Subsidiaries during the period beginning in fiscal year 2002 and ending as of the date of this Agreement, in either case in excess of $500,000; or (ii) which require the making of any Company Subsidiary on no more than thirty (30) days' notice without liability or financial obligation to Company.charitable contribution in excess of $25,000; (b) any agreement No purchase contracts or plan, including, without limitation, any stock option plan, stock appreciation right plan commitments of the Company or stock purchase plan, any of the benefits its Subsidiaries continue for a period of which will be increased, more than ninety (90) days or the vesting of benefits of which will be accelerated, by the occurrence of any are in excess of the transactions contemplated by this Agreement or the value of any normal, ordinary and usual requirements of the benefits of which will be calculated on the basis of any business of the transactions contemplated by this AgreementCompany; (c) any agreement of indemnification or any guaranty other than Except for agreements: (i) any agreement for the purchase, sale, license, distribution, maintenance or support of indemnification Company products entered into in connection the ordinary course; (ii) under which the Company made or received payments of less than $500,000 during calendar year 2002; or (iii) which do not provide for any term extension or expansion of the rights granted with respect to the sale Company Intellectual Property as a result of the Merger, there are no contracts or agreements to which the Company is a party that (a) do not expire or that the Company may not terminate within one year after the date of this Agreement or (b) may be renewed at the option of any person other than the Company so as to expire more than one year after the date of this Agreement. (d) Neither the Company nor any of its Subsidiaries has any outstanding contract (i) with any officer, employee, agent, consultant, advisor, salesman or sales representative, or (ii) other than with respect to any reseller, distribution, OEM or end user license of software agreement for Company products entered into in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary to engage in any line of business or to compete with any person distributor or granting any exclusive distribution rightsdealer that is not cancelable by it on notice of 30 days or less and without material liability, penalty or premium; (e) Neither the Company nor any agreementof its Subsidiaries is in default, nor is there any known basis for any valid claim of default, under any contract made or obligation owed by it except for such defaults that would not reasonably be likely to have a Company Material Adverse Effect; (f) Neither the Company nor any of its Subsidiaries has any employee to whom it is paying compensation at an annual rate of more than $200,000.00 for services rendered; (g) Neither the Company nor any of its Subsidiaries is restricted from carrying on its business in any material respect anywhere in the world by any material agreement under which the Company (i) is restricted from selling, licensing or otherwise distributing any of its technology or products or providing services to customers or potential customers or any class of customers, including without limitation resellers or other distributors, in any geographic area, during any period of time, or in segment of any market or line of business, (ii) is required to give favored pricing to any customers or potential customers or any class of customers or to provide exclusive or favored access to any product features to any customers or potential customers or any class of customers, or (iii) has agreed to purchase a minimum amount of goods or services or has agreed to purchase goods or services exclusively from a certain party; (h) Neither the Company nor any of its Subsidiaries has any liability or obligation with respect to the return of inventory or merchandise in the possession of wholesalers, distributors, resellers, retailers or other customers, except for such obligations or liabilities that would not reasonably be likely to have a Company Material Adverse Effect; (i) Neither the Company nor any of its Subsidiaries has any debt obligation for borrowed money, including guarantees of or agreements to acquire any such debt obligation of others; (j) Neither the Company nor any of its Subsidiaries has any contract for capital expenditures in excess of $250,000.00, individually, or such contracts representing in excess of $1,000,000.00 in the aggregate; (k) Neither the Company nor any of its Subsidiaries has any contract, agreement or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which business; (l) Neither the Company nor any of its Subsidiaries has any material contract, agreement or commitment for the purchase of any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesenterprise; (fm) Neither the Company nor any dealer, distributor, joint marketing or development agreement currently in force under which Company or of its Subsidiaries has any Company Subsidiary has continuing material obligations outstanding loan to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or person other than to the Company or a wholly owned Subsidiary of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesthe Company; (gn) Neither the Company nor any agreementof its Subsidiaries has any power of attorney outstanding or any obligations or liabilities (whether absolute, contract accrued, contingent or commitment currently in force to provide source code to any third party for any product or technology otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor (other than source code escrow indemnities contained in agreements for the purchase, sale, license, distribution, maintenance or other similar arrangements support of products entered into in the normal ordinary course of business) or otherwise in respect of any obligation of any person, corporation, partnership, joint venture, association, organization or other entity, or any capital maintenance, keep-well or similar agreements or arrangements; (ho) Neither the Company nor any agreementof its Subsidiaries has any agreements, contract contracts or commitment currently arrangements containing any provision requiring the Company to indemnify another party (other than indemnities contained in force agreements for the purchase, sale, license, distribution, maintenance or support of products entered into in the ordinary course of business) or containing any covenant not to license bring legal action against any third party party; (p) The Company has made available to manufacture or reproduce any Company productParent true, service or technology or any agreementcomplete and correct copies of each contract listed in Section 3.6 of the Disclosure Schedule (collectively, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent;“Material Contracts”); and (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to Neither the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below)of its Subsidiaries has materially breached, is in breach, violation or material default under, and neither Company nor any Company Subsidiaries or has received written notice that it has breached, violated of any material breach of or defaulted material default under, any of the material terms Material Contract and such breach or conditions of any of the agreementsdefault remains uncured, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of to the Company’s knowledge, no other party to any Company Material Contract has materially breached or is in material default of any of its obligations thereunder which breach or default remains uncured, (iii) each Material Contract is in material breach full force and effect and (iv) each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiary and, to the Company’s knowledge, each of the other parties thereto, enforceable in accordance with its terms, except that the enforcement thereof may be limited by (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or material default thereunderother similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law).

Agreements, Contracts and Commitments. Neither Company Except as set forth in the Nathan's Schedules, neither Nathan's nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any collective bargaining agreements; (b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (c) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directorsemployee, other than those that are not terminable by Company Nathan's or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability liability, except to the extent general principles of wrongful termination law may limit Nathan's or financial obligation any of its subsidiaries' ability to Company.terminate employees at will; (bd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ce) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any business other than indemnification obligation of the Company agreements between Nathan's or any Company Subsidiary to of its subsidiaries and any of its officers or directors; (df) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company Nathan's or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rightsperson; (eg) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty; (h) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parententerprise; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement joint marketing or development agreement; (k) any distribution agreement entered into prior to the date of this Agreement(identifying any that contain exclusivity provisions); or (kl) any other agreement, contract or commitment that includes receipts (excluding real and personal property leases) which involves payment by Nathan's or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (its subsidiaries under any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel commitment of $100,000 or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, more in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, aggregate and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect not cancelable without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunderwithin thirty (30) days.

Agreements, Contracts and Commitments. Neither Section 3.17 of the Company nor any Disclosure Schedule sets forth each of the following Company Subsidiary is a party to or is bound by:Contracts (such Company Contracts, the “Material Contracts”): (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee officer or member of Company's ’s Board of Directors, other than those that are terminable by any Acquired Company or any Company Subsidiary on no more than thirty (30) 30 days' ’ notice without liability or financial obligation to Company.the Acquired Companies; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty guaranty, other than (i) any agreement of indemnification agreements with Acquired Company customers entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of any Acquired Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by any Acquired Company or any Company Subsidiary after the date of this Agreement of a material amount assets in excess of assets $500,000 not in the ordinary course of business or pursuant to which any Acquired Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesany Subsidiary; (f) any dealer, distributor, joint marketing marketing, alliance, development or development other agreement currently in force under which any Acquired Company or any Company Subsidiary has have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreservice, or any material agreement pursuant to which any Acquired Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property Intellectual Property Rights that will not be owned, in whole or in part, by Company or Company Subsidiariessuch Acquired Company; (g) any material agreement, contract or commitment currently in force pursuant to which (i) an Acquired Company licenses any third party to manufacture or reproduce any Acquired Company product, service or technology; (ii) a third party resells, distributes, or acts as a sales representative for any Acquired Company products or service, excluding agreements with distributors or sales representatives in the normal course of business that are cancelable without penalty upon notice of 90 days or less, and substantially in the form previously provided to Parent; and (iii) an Acquired Company engages any third party to supply any products or perform any services material to the conduct of the Business, including without limitation any long-term supply agreements, installation service subcontracts, and repair service provider agreements, in each case to the extent such Contract is (x) reasonably likely to involve consideration of more than $500,000 during any fiscal year of the Acquired Companies and (y) is not cancelable without penalty upon notice of 90 days or less; (h) any agreement, contract or commitment currently in force to provide source code to any third party party, including any escrow agent, for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force that is material to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parenteach Subsidiary taken as a whole; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit with a value in excess of $250,000; (j) all material real property leases and subleases, occupancy licenses and other occupancy agreements entered into by Company and any brokerage agreement and construction contract with respect to the same; (k) any settlement agreement entered into within five years prior to the date of this AgreementAgreement involving consideration of more than $1,000,000; or (kl) any other agreement, contract or commitment (i) in connection with or pursuant to which any Acquired Company expects to spend or receive (or are expected to spend or receive), in the aggregate, more than $500,000 during the current fiscal year or during the next fiscal year, or (ii) that includes receipts or expenditures is a material contract (as defined in Item 601(b)(10) of $1,000,000 or more individuallyRegulation S-K of the SEC rules). Neither Company nor any Company SubsidiariesNo Acquired Company, nor to the Company's knowledge ’s Knowledge, any other party to a Company Contract (as defined below)Material Contract, is in material breach, violation or default under, and neither Company nor any Company Subsidiaries Subsidiary has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") Material Contract in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) ). Each Material Contract is valid, has not been terminated as of the date of this Agreement and, except as permitted under Section 5.2 will not be terminated prior to the Effective Date, and is enforceable against the applicable Acquired Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge Knowledge of the Company, on the other parties thereto, in accordance with its terms, except as enforceability may be limited by bankruptcy and is in full force other similar laws and effect, and (ii) upon consummation general principles of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunderequity.

Agreements, Contracts and Commitments. (a) Neither the Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation to the Company.; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ciii) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of hardware or software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesthe Company's subsidiaries; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gvii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of businessthat is material to Company and its subsidiaries taken as a whole; (hviii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company productProduct, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company productsProducts, including any parts services or components thereoftechnology, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (iix) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, other than accounts receivables and payables in the ordinary course of business; (jx) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or (kxi) any other agreement, contract or commitment that includes receipts or expenditures has a value of $1,000,000 300,000 or more individually. in any individual case. (b) Neither the Company nor any Company Subsidiariesof its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither the Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 set forth in the Company Disclosure Letter (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Except as set forth in Section 3.16 of the Company Disclosure Schedule, as of the date hereof, neither the Company nor any Company Subsidiary of its Subsidiaries is a party to or is bound by: (a) any employment written or oral consulting agreement, contract or commitment with any officer independent contractor or director or higher level employee or member of Company's Board of Directors, consultant other than those that are terminable by the Company or any Company Subsidiary of its Subsidiaries on no more than thirty (30) 30 days' notice without liability or financial obligation to Company. (b) obligation, or any agreement written or planoral consulting agreement, including, without limitation, contract or commitment with any stock option plan, stock appreciation right plan independent contractor or stock purchase plan, consultant under which any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by are contingent upon the occurrence of any a transaction involving the Company of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis nature of any of the transactions contemplated by this Agreement; (cb) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) ; and any indemnification obligation commitment of the Company to honor or make any Company Subsidiary to its officers or directorspayment under any such indemnification arrangement; (dc) any agreement, contract or commitment containing any covenant (i) limiting in any respect the right of the Company or any Company Subsidiary of its Subsidiaries to engage in any line of business or to compete with any person or (ii) granting any exclusive distribution rights; (ed) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any Company Subsidiary of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company the Company's Subsidiaries; (fe) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any Company Subsidiary has of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) 90 days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which the Company or any Company Subsidiary has of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company or Company Subsidiariesany of its Subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (hf) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative as a distributor in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreementbusiness; or (kg) any loan, note, indenture or other agreement, contract or commitment that includes receipts or expenditures instrument evidencing indebtedness in excess of $1,000,000 or more individually100,000. Neither the Company nor any Company of its Subsidiaries, nor to the Company's knowledge any other party to any of the agreements, contracts or commitments to which the Company or any of its Subsidiaries is a party or by which any of them are bound that are required to be disclosed in the Company Contract Disclosure Schedule pursuant to Section 3.15 or this Section 3.16 ("Company Contracts") is, as defined below)of the date hereof, is in breach, violation or default underunder (other than as a result of the insolvency of the Company), and any Company Contract, except for breaches, violations or defaults that in the aggregate would not have a Material Adverse Effect. Except as set froth in Section 3.16 of the Company disclosure Schedule, neither the Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") Contract in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary of its ------------------------------------- subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company.; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation business of the Company or any Company Subsidiary to its officers or directorsCompany; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business (other than with respect to limitations on the distribution by Company of certain content and service providers), or to compete with any person or granting any exclusive distribution rightsrights of Company services; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (fi) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or (ii) any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less except for agreements, contracts or commitments with an annual value of less than $100,000; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of businessthat is material to Company and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except those agreements with customers, distributors or sales representative representatives made in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes involves annual expenditures or receipts or expenditures of $1,000,000 2,500,000 or more individually. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 in the Company Schedule (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company Except as set forth in the ------------------------------------- Aurum Schedules, neither Aurum nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyAurum's Board of Directors, other than those that are terminable by Company Aurum or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company.the extent general principles of wrongful termination law may limit Aurum's or any of its subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, including without limitation, limitation any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any business other than indemnification obligation of the Company agreements between Aurum or any Company Subsidiary to of its subsidiaries and any of its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company Aurum or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesenterprise; (f) any dealer, distributor, material joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesagreement; (g) any agreement, contract or commitment currently in force to provide or receive source code to any third party for any product product, service or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business;technology; or (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Aurum product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative as a distributor in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individuallybusiness. Neither Company Aurum nor any Company Subsidiariesof its subsidiaries, nor to CompanyAurum's knowledge any other party to a Company Aurum Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Aurum or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 of the type described in clauses (a) through (h) above (any such agreement, contract or commitment, a "Company ContractAURUM CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Aurum Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breachesdamages, violations or defaults, in the aggregatewhich would be reasonably likely to cause a Material Adverse Effect on Aurum.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company Except as set forth in the Tencor Schedules, neither Tencor nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyTencor's Board of Directors, other than those that are terminable by Company Tencor or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company.the extent general principles of wrongful termination law may limit Tencor's or any of its subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any business other than indemnification obligation of the Company agreements between Tencor or any Company Subsidiary to of its subsidiaries and any of its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company Tencor or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries;enterprise; or (f) any dealer, distributor, material joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company Tencor nor any Company Subsidiariesof its subsidiaries, nor to CompanyTencor's knowledge any other party to a Company Tencor Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Tencor or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, a "Company Tencor Contract") in such a manner as would permit any other party to cancel or terminate any such Company Tencor Contract, or would permit any other party to seek damages, which would be reasonably likely to be material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregateto Tencor.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company Except as set forth in Section 3.16 and Section 3.2(b) of the Parent Schedules, neither Parent nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyParent's Board of Directors, other than those that are terminable by Company Parent or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation to Company.obligation; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any business other than indemnification obligation of the Company agreements between Parent or any Company Subsidiary to of its subsidiaries and any of its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company Parent or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries;enterprise; or (f) any dealer, distributor, material joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company Parent nor any Company Subsidiariesof its subsidiaries, nor to CompanyParent's knowledge any other party to a Company Parent Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Parent or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 of the type described in clauses (a) through (f) above (any such agreement, contract or commitment, a "Company ContractPARENT CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Parent Contract, or would permit any other party to seek damages, which would be reasonably likely to be material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregateto Parent.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company (a) Except as set forth in Schedule 2.12(a) of the Stockholder Disclosure Letter, as of the date hereof, neither the Company, WW nor any Company Subsidiary has, is a party to or to, is bound by:, and the Business is not the beneficiary of, or subject to, any of the following (those agreements, arrangements, contracts or commitments to which the Business is subject, but to which the Company, WW or the Subsidiaries is not, as between the Stockholder or its subsidiaries (other than the Company, WW and the Subsidiaries) and the Company, WW and the Subsidiaries, are clearly marked as such on Schedule 2.12(a)): (ai) any collective bargaining agreements, (ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, (iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, (iv) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directors, other than those that are terminable by Company individual consultant or salesperson or any Company Subsidiary on no more than thirty (30) days' notice without liability consulting or financial obligation sales agreement, contract or commitment under which any firm or other organization provides services to the Company., WW or any Subsidiary, (bv) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation right rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;, (cvi) any agreement or plan to issue, grant, deliver or sell or authorize, or that proposes the issuance, grant, delivery or sale of, or to purchase or that proposes the purchase of, any shares, or any rights attached to any shares, in the Company, WW or any Subsidiary or any securities convertible into or exchangeable for shares in the Company, WW or any Subsidiary, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any shares in the Company, WW or any Subsidiary or other convertible securities, (vii) any fidelity or surety bond or completion bond, (viii) any lease of personal property requiring payments over the term of such lease or series of related leases individually in excess of $200,000 or any lease of real property, (ix) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors;guaranty, (dx) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company the Company, WW or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rights;person, (exi) any agreement, contract or commitment currently in force relating to the disposition capital expenditures or acquisition by Company involving future payments or any Company Subsidiary after the date a series of this Agreement related payments in excess of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries;$100,000, (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (gxii) any agreement, contract or commitment currently relating to the disposition or acquisition of assets or any interest in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in business enterprise outside the normal ordinary course of the Company's or WW's business;, as applicable, (hxiii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (ix) hereof, (xiv) any purchase order or contract for the purchase of raw materials involving $50,000 or more, (xv) any construction contracts involving future payments or a series of related payments in excess of $50,000, (xvi) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use of distribution of the Company's or WW's products, technologies or services; (jxvii) any settlement distribution, joint marketing or development agreement entered into prior to the date that includes any provision granting any person a right of this Agreement; orfirst refusal, right of first negotiation or exclusive, "most favored nation" or preferential placement or other preferential rights, (kxviii) any agreement pursuant to which the Company, WW or any Subsidiary has developed for and/or delivered to or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property, (xix) any agreement, contract or commitment for the purchase of advertising, (xx) any other agreement, contract or commitment that includes receipts or expenditures of involves $1,000,000 100,000 or more individually. Neither Company nor any Company Subsidiariesor is not cancelable without penalty within thirty (30) days (b) Except for such alleged breaches, nor to Company's knowledge any other party to violations and defaults, and events that would constitute a Company Contract (as defined below), is in breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b) of the Stockholder Disclosure Letter, neither the Company, WW nor any Subsidiary nor the Stockholder nor any of its subsidiaries has materially breached, violated or defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has materially breached, violated or defaulted under, any of the material terms or conditions of any of the agreementsagreement, contracts contract or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are commitment required to be disclosed as exceptions to this Section 4.10 set forth on Schedule 2.12(a) of the Stockholder Disclosure Letter or Schedule 2.11(g) of the Stockholder Disclosure Letter (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) ). Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and Contract is in full force and effecteffect (assuming the Contracts have been duly authorized, executed and (iidelivered by the respective other parties thereto) upon consummation and is not subject to any default thereunder of which the transactions contemplated Stockholder has Knowledge by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of any party obligated to the Company, no other party to WW or any Company Contract is in material breach thereof or material default thereunderSubsidiary pursuant thereto.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary The following agreements, contracts or commitments with respect to which Proxim or one of its subsidiaries is a party to or is bound byare referred to herein as the "PROXIM CONTRACTS": (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyProxim's Board of Directors, other than those that are terminable by Company Proxim or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company.Proxim; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Proxim or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Proxim or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount assets in excess of assets $250,000 not in the ordinary course of business or pursuant to which Company Proxim has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesProxim's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company Proxim or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company Proxim or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company Proxim or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, Proxim product or service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Company productsProxim products or service, including any parts or components thereofProxim Material IP Contract, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to ParentWestern Multiplex; (ih) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (ji) any settlement agreement; provided that a Proxim Contract shall not include any settlement agreement entered into prior to more than five (5) years before the date of this Agreement; or (kj) any other agreement, contract or commitment (i) in connection with or pursuant to which Proxim and its subsidiaries will spend or receive (or are expected to spend or receive), in the aggregate, more than $250,000 during the current calendar year or during the next calendar year, (ii) the termination, expiration or loss of the counterparty's performance of which could reasonably be expected to have a Material Adverse Effect on Proxim or (iii) that includes receipts or expenditures is a material contract (as defined in Item 601(b)(10) of $1,000,000 or more individuallyRegulation S-K of the SEC rules). Neither Company Proxim nor any Company Subsidiariesof its subsidiaries, nor to CompanyProxim's knowledge Knowledge any other party to a Company Contract (as defined below)Proxim Contract, is in material breach, violation or default under, and neither Company Proxim nor any Company Subsidiaries of its subsidiaries has received written notice that it has materially breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") Proxim Contract in such a manner as would permit any other party to cancel or terminate any such Company Proxim Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Except as set forth in the Company Schedules, neither the Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit the Company.'s or any of its subsidiaries' ability to terminate employees at will; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan, stock purchase plan or restricted stock purchase planagreement, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ciii) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any business other than indemnification obligation of agreements between the Company or any Company Subsidiary to of its subsidiaries and any of its officers or directors; (div) any agreement, contract or commitment currently in force containing any covenant limiting in any respect the right freedom of the Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesenterprise; (fvi) any dealer, distributor, material joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries;agreement; or (gvii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any that is material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individuallyCompany and its subsidiaries taken as a whole. Neither the Company nor any Company Subsidiariesof its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreementsagreement, contracts contract or commitments commitment to which the Company or any Company Subsidiary of its subsidiaries is a party of the type described above or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 any other material agreement, contract or commitment (any such agreement, contract or commitment, as well as any agreement, contract or commitment that is an exhibit to any Company SEC Report, a "Company ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek damages, which would be reasonably likely to be material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary is Section 2.10 of the Seller Disclosure Letter sets forth, as of the date of this Agreement, a party true and complete list of, and Seller has delivered or made available to Buyer, or is bound by:will deliver or make available to Buyer prior to the Final Diligence Delivery Date, true and complete copies of (collectively, the “Material Contracts”): (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary on no more than thirty (30) days' notice without liability or financial obligation to Company. (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation each Contract of the Company or any the Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve involving aggregate annual payments by or to the Company or the Company Subsidiary, of more than $500,000 50,000, other than any Contract set forth on Section 2.8(c), 2.15(b) or more, or any material agreement 2.16(a) of the Seller Disclosure Letter; (b) (i) all Contracts pursuant to which any Indebtedness of the Company or the Company Subsidiary is outstanding or may be incurred, (ii) all Contracts of or by the Company or the Company Subsidiary guaranteeing any debt obligations of any other person (other than the Company or the Company Subsidiary), including the respective aggregate principal amounts outstanding as of the date hereof, and (iii) all Contracts involving any “keep well” arrangements or pursuant to which the Company or the Company Subsidiary has continuing material obligations agreed to jointly develop maintain any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesfinancial statement condition of another person; (gc) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments all Contracts pursuant to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiariesthe Company Subsidiary has agreed not to, as or which, following the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue could restrict the ability of Buyer, including the Company and the Company Subsidiary, to compete with any person in any business or in any geographic area or to engage in any business or other activity, including any restrictions relating to “exclusivity” or any similar requirement in favor of any person other than the Company or the Company Subsidiary or pursuant to which any benefit is required to be given or lost as a result of so competing or engaging; (d) all Contracts to which the Company or the Company Subsidiary is party granting any license to, or franchise in respect of, any material right, property or other asset; (e) all joint venture, limited liability company, partnership or other similar Contracts (including all amendments thereto) in which the Company or the Company Subsidiary holds an interest; (f) all Contracts with any Governmental Entity; (g) all Contracts with any Affiliate of the Company or the Company Subsidiary; (h) all Contracts that provide for employment or consulting arrangements, other than Contracts covered in clause (g); and (i) all Contracts that provide for any payment or accrual of benefits in connection with a change in control of the Company or the Company Subsidiary, whether in connection with the transactions contemplated by this Agreement or otherwise. Each of the Company and the Company Subsidiary has performed all material obligations required to be performed by it to date under each Material Contract. Each Material Contract is in full force and effect without penalty and is a legal, valid, binding and enforceable obligation of the Company or other adverse consequence. To the Company Subsidiary, as the case may be, and to the knowledge of Seller, the other parties thereto, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in effect affecting creditors’ rights generally and (ii) general principles of equity. None of the Company, no the Company Subsidiary or, to the knowledge of Seller, any other party to any Company Contract is in material breach thereof or material violation of or in default thereunderunder (nor, to the knowledge of Seller, does there exist any condition which upon the passage of time or the giving of notice or both would cause such a violation of or default under) any Material Contract to which it is a party or by which the Company, the Company Subsidiary or any of their respective properties or other assets is bound, except for violations or defaults that individually or in the aggregate have not had and are not reasonably likely to have a Material Adverse Effect.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary is a party to or is bound bySection 2.9 of the VIA Disclosure Schedule identifies, as of the date of this Agreement: (a) each VIA Contract relating to any employment bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or consulting agreementretirement plans, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary on no more than thirty (30) days' notice without liability other employee benefit plans or financial obligation to Company.arrangements; (b) each VIA Contract relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, not terminable by VIA or its Subsidiaries on ninety (90) days notice without liability, except to the extent general principles of wrongful termination law may limit VIA’s or VIA’s Subsidiaries’ ability to terminate employees at will; (c) each VIA Contract relating to any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this AgreementContemplated Transactions; (cd) each VIA Contract relating to any agreement of indemnification or any guaranty other than (i) indemnification agreements between VIA and any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its respective officers or directors; (de) each VIA Contract relating to any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company VIA or its Subsidiaries (or, following the Merger, the Surviving Corporation or any Company Subsidiary of its Subsidiaries) to engage in any line of business or to compete with any person or granting any exclusive distribution rightsPerson; (ef) each VIA Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement, individually or in the aggregate, in excess of $25,000 and not cancelable without penalty; (g) each VIA Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company of material assets or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesEntity; (fh) each VIA Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, individually or in the aggregate, in excess of $25,000 or creating any Encumbrances with respect to any assets of VIA or any VIA Subsidiary (or, following the Merger, the Surviving Corporation or any of its Subsidiaries) or any loans or debt obligations with officers or directors of VIA; (i) each VIA Contract relating to (i) any distribution, license or supply agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of VIA or any VIA Subsidiary; (iii) any dealer, distributor, joint marketing marketing, alliance, joint venture, cooperation, development or development other agreement currently in force under which Company VIA or any Company Subsidiary its Subsidiaries has continuing material obligations to jointly develop or market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreservice, or any material agreement pursuant to which Company VIA or any Company Subsidiary its Subsidiaries has continuing material obligations to jointly develop any intellectual property Intellectual Property that will not be owned, in whole or in part, by Company VIA or Company Subsidiaries; such VIA Subsidiary; or (giv) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce produce any Company product, service or technology or any agreement, contract or commitment currently in force to sell sell, distribute or distribute commercialize any Company products, including any parts products or components thereof, service or technology except agreements with distributors or sales representative representatives in the normal course Ordinary Course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of creditBusiness; (j) each VIA Contract relating to development, ownership, licensing or use of any settlement agreement entered into prior Intellectual Property, (other than “off-the-shelf” software agreements commercially available on reasonable terms to the date of this Agreementpublic generally); (k) each VIA Contract with any Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to VIA or any VIA Subsidiary in connection with the Contemplated Transactions; or (kl) any other agreement, Contract or commitment (i) which involves payment or receipt by VIA or its Subsidiaries under any such agreement, contract or commitment that includes receipts or expenditures of $1,000,000 50,000 or more individuallymore, individually or in the aggregate, or obligations after the date of this Agreement in excess of $50,000, individually or in the aggregate, or (ii) that is material to the business or operations of VIA and its Subsidiaries, taken as a whole. Neither Company VIA has delivered or made available to Corautus accurate and complete copies of all material written VIA Contracts, including all amendments thereto. There are no VIA Contracts that are not in written form. Except as set forth on Section 2.9 of the VIA Disclosure Schedule, neither VIA nor any Company Subsidiariesof its Subsidiaries has, nor to Company's knowledge VIA’s Knowledge, as of the date of this Agreement has any other party to a Company VIA Material Contract (as defined below), is in breachbreached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company VIA or any Company Subsidiary its Subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a "Company “VIA Material Contract"”) in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.such

Agreements, Contracts and Commitments. Neither Except as otherwise set forth ------------------------------------- in Part 2.14 of the Company Letter, neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit Company.'s or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification indemnification, any guaranty or any guaranty other than (i) any agreement instrument evidencing indebtedness for borrowed money by way of indemnification entered into in connection with the direct loan, sale or license of software products in the ordinary course of businessdebt securities, purchase money obligation, conditional sale, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directorsotherwise; (d) any agreement, contract obligation or commitment containing any covenant limiting in any respect covenants purporting to limit or which effectively limit the right of Company Company's or any Company Subsidiary of its subsidiaries' freedom to engage compete in any line of business or to compete with in any person geographic area or which would so limit Company or Surviving Corporation or any of its subsidiaries after the Effective Time or granting any exclusive distribution or other exclusive rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (f) any dealerlicensing, distributordistribution, joint marketing marketing, reseller, merchant services, advertising, sponsorship or development other similar agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesother than Ordinary Course Agreements; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business;technology; or (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment currently in effect that includes receipts is material to Company's business as presently conducted and proposed to be conducted entered into since the filing of Company's Quarterly Report on Form 10-Q for the Fiscal Quarter ending March 31, 1999, or expenditures (ii) any amendment or modification to any agreement, contract or commitment required to be publicly filed by Company pursuant to the Exchange Act which has not been so filed as a result of $1,000,000 such amendment or more individually. modification having been entered into subsequent to the filing of such Form 10-Q. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions in the Company Letter pursuant to this clauses (a) through (h) above, pursuant to Section 4.10 2.9 hereof, or pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary Except for the FBC Documents and as otherwise set forth in Section 2.16 of the FBC Disclosure Schedules, as of the date hereof FBC is not a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or officer, director or higher level employee or member of Company's Board of Directorsemployee, other than those that are terminable by Company or any Company Subsidiary FBC on no more than thirty (30) 30 days' notice without liability or financial obligation to Company.obligation; (b) any agreement of indemnification outside the ordinary course of FBC's business or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreementguaranty; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary FBC to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (ed) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount FBC of assets not in the ordinary course of business or pursuant to which Company FBC has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreemententerprise; or (ke) any other agreement, contract or commitment currently in effect that includes receipts is expected to represent more than ten percent (10%) of FBC's revenue for the calendar year 2004 or expenditures that requires FBC to make payments of greater than $1,000,000 10,000 per year or more individuallythan $20,000 in the aggregate. Neither Company nor any Company SubsidiariesFBC, nor to CompanyFBC's knowledge any other party to a Company an FBC Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries FBC has not received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary FBC is a party or by which it is bound that are required to be disclosed as exceptions in the FBC Disclosure Schedules pursuant to this Section 4.10 clauses (a) through (e) above (any such agreement, contract or commitment, a an "Company FBC Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue ). The FBC Contracts are in full force and effect without penalty or other adverse consequence. To the knowledge and FBC has performed all of the Company, no other party material obligations required to any Company Contract be performed by it and is in material breach thereof or material default thereunderentitled to all accrued benefits under all FBC Contracts.

Agreements, Contracts and Commitments. Neither Company (a) Except as would not be material to the HDD Business, neither Parent nor any Company Subsidiary of its Subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's the Board of DirectorsDirectors of Parent, other than those that are terminable by Company Parent or any Company Subsidiary of its Subsidiaries on no more than thirty (30) days' notice without liability Liability or financial Financial obligation to Company.Parent; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ciii) any agreement of indemnification indeminification or any guaranty other than (i) any agreement of indemnification indeminification entered into in connection with the sale or license of software products or services in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Parent or any Company Subsidiary of its Subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Parent or any Company Subsidiary of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company its Subsidiaries;; or (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;. (jb) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company Parent nor any Company of its Subsidiaries, nor to Company's the knowledge of Parent any other party to a Company Parent Contract (as defined below), is in breach, violation or default under, and neither Company Parent nor any Company of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Parent or any Company Subsidiary of its Subsidiaries is a party or by which it Parent or any of its Subsidiaries is bound that are required to be disclosed as exceptions in the Parent Schedules pursuant to this Section 4.10 Agreement (any such agreementagreements, contract contracts or commitment, a commitments are "Company ContractParent Contracts") in such a manner as would permit any other party to cancel or terminate any such Company Parent Contract, or would permit any other party to seek material damages or other material remedies (for any or all of such breaches, violations or defaults, or all of them in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. (a) Neither the Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation to the Company.; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ciii) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of hardware or software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesthe Company's subsidiaries; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gvii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of businessthat is material to Company and its subsidiaries taken as a whole; (hviii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company productProduct, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company productsProducts, including any parts services or components thereoftechnology, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (iix) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, other than accounts receivables and payables in the ordinary course of business; (jx) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or (kxi) any other agreement, contract or commitment that includes receipts or expenditures has a value of $1,000,000 300,000 or more individually. in any individual case. (b) Neither the Company nor any Company Subsidiariesof its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither the Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 set forth in the Company Disclosure Letter (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any ---------------- other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company Except as otherwise set forth in the GeoCities Schedules, neither GeoCities nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's GeoCities' Board of Directors, other than those that are terminable by Company GeoCities or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company.the extent general principles of wrongful termination law may limit GeoCities' or any of its subsidiaries' ability to terminate employees at will, or any consulting agreement; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directorsguaranty; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company GeoCities or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company GeoCities or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company GeoCities has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesGeoCities' subsidiaries; (f) any dealerlicensing, distributordistribution, joint marketing sponsorship, advertising, merchant program or development other similar agreement currently in force under to which Company GeoCities or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and one of its subsidiaries is a party which may not be canceled by GeoCities or its subsidiaries, as the case may be, without penalty in excess of $50,000 upon notice of ninety (90) 45 days or less and, in the case of dealer, distributor or joint marketing agreements, which involve provides for payments by or to the Company GeoCities or its subsidiaries in an amount in excess of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries50,000 over the term of the agreement; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreementtechnology; or (kh) any other agreement, contract or commitment currently in effect that includes receipts or expenditures of $1,000,000 or more individuallyis material to GeoCities' business as presently conducted and proposed to be conducted. Neither Company GeoCities nor any Company Subsidiariesof its subsidiaries, nor to Company's GeoCities' knowledge any other party to a Company GeoCities Contract (as defined below), is in breach, violation or default under, and neither Company GeoCities nor any Company Subsidiaries of its subsidiaries has received written notice (or to its knowledge, any other form of notice) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company GeoCities or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions in the GeoCities Schedules pursuant to this clauses (a) through (h) above or pursuant to Section 4.10 2.9 hereof (any such agreement, contract or commitment, a "Company ContractGEOCITIES CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company ContractGeoCities Contract the effect of which would have a Material Adverse Effect on GeoCities, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary is a party to or is bound by: (a) any employment or consulting agreementSection 3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directorsa “Company Material Contract” and collectively, other than those that are terminable by the “Company or any Company Subsidiary on no more than thirty (30) days' notice without liability or financial obligation to Company.Material Contracts”): (bi) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of each Company Contract relating to the benefits of which will be increasedemployment of, or the vesting performance of benefits of which employment-related services by, any current Company Associate that is not immediately terminable at-will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Company without notice, severance, or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreementother similar cost or liability; (cii) any agreement each Company Contract the primary purpose of which is indemnification or any guaranty other than (i) any agreement of indemnification guaranty, except as entered into in connection with the sale or license Ordinary Course of software products in the ordinary course of business, or Business; (iiiii) each Company Contract containing (A) any indemnification obligation covenant limiting the freedom of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary Surviving Corporation to engage in any line of business or to compete with any person Person, (B) any most-favored pricing arrangement, (C) any exclusivity provision, or granting (D) any exclusive distribution rightsnon-solicitation provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the ability of Company to conduct its business; (eiv) any agreement, contract or commitment currently each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in force excess of $100,000 pursuant to its express terms and not cancelable without penalty; (v) each Company Contract relating to the disposition or acquisition by Company of material assets or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporationEntity, partnershipin each case, joint venture or other business enterprise other than Company Subsidiariesinvolving payments in excess of $100,000; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which each Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code Contract relating to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guaranteesloans, loans notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit or creating any material Encumbrances with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company, in each case, having an outstanding principal amount in excess of $100,000; (jvii) any settlement agreement entered into prior each Company Contract requiring payment by or to the Company after the date of this AgreementAgreement in excess of $100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company, or (D) any Company Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business; (viii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions; (ix) each Company Real Estate Lease; (x) each Company Contract to which the Company is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $100,000; or (kxi) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company, as applicable, and (A) which involves payment or receipt by the Company after the date of this Agreement under any such agreement, contract or commitment that includes receipts of more than $100,000 in the aggregate, or expenditures obligations after the date of this Agreement in excess of $1,000,000 100,000 in the aggregate, or more individually(B) that is material to the business or operations of the Company. (b) The Company has delivered or made available to PubCo accurate and complete copies of all Company Material Contracts, including all amendments thereto. Neither There are no Company nor any Material Contracts that are not in written form. The Company Subsidiarieshas not, nor to the Company's knowledge ’s Knowledge, as of the date of this Agreement has any other party to a Company Contract (as defined below)Material Contract, is in breachbreached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") Material Contract in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each which would reasonably be expected to have a Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, Material Adverse Effect. As to the knowledge of the Company, on as of the other parties theretodate of this Agreement, each Company Material Contract is valid, binding, enforceable and is in full force and effect, and (ii) upon consummation subject to the Enforceability Exceptions. As of the transactions contemplated by date of this Agreement, shall continue in full force and effect without penalty no Person is renegotiating with the Company to change any material amount paid or other adverse consequence. To payable to the knowledge of the Company, no other party to Company under any Company Material Contract is in or any other material breach thereof term or material default thereunderprovision of any Company Material Contract.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary of its ------------------------------------- subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company.; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license or purchase of software products or services in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of businessthat is material to Company and its subsidiaries taken as a whole; (h) any material agreement, contract or commitment commitment, other than standard end-user license agreements and related maintenance and support agreements entered into in the ordinary course of business, currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, leases, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures has a value of $1,000,000 250,000 or more individually. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 in the Company Schedule (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages reasonably be expected, either individually or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the result in a Material Adverse Effect on Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither (a) As of the date hereof, neither the Company nor any Company Subsidiary of its Subsidiaries is a party to or is bound by: (ai) any employment agreement or consulting agreement, employment contract or commitment with any officer or director or higher level director, officer, employee or member of Company's Board of Directorsconsultant, other than those that are terminable at-will by the Company or any Company Subsidiary of its Subsidiaries on no more than thirty (30) days' notice without contractual liability or financial obligation to Company. (b) obligation, other than any such agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any contract pursuant to which the Company and its Subsidiaries have contractual liability not in excess of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement$125,000; (cii) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in outside the ordinary course of the Company's business; (iii) other than Commercial Affiliate Agreements, any agreement or (iicontract involving express minimum revenues stated in any such agreement or contract as amended to date to the Company and its Subsidiaries taken as a whole in excess of $500,000 in any one year period in the future. Section 2.14(a)(iii) of the Company Disclosure Letter sets forth any indemnification obligation such agreements or contracts of the Company or any Company Subsidiary to of its officers Subsidiaries and identifies each one which, by its terms, has terms that will be modified or directorsadjusted, or which, by its terms, will become terminable by the other party thereto, in each case as a result of the execution of this Agreement or the Voting Agreements or the consummation of the Merger; (div) any agreement, agreement or contract or commitment containing any covenant limiting in any respect the right of the Company or any Company Subsidiary of its Subsidiaries (i) to engage in any line of business business, (ii) to develop, market or distribute products or services, or (iii) to compete with any person person, or granting any exclusive distribution rights; (ev) any lease for (A) real property in which the amount of payments which the Company or any of its Subsidiaries is required to make on an annual basis exceeds $100,000 or (B) personal property in which the amount of payments which the Company or any of its Subsidiaries is required to make on an annual basis exceeds $150,000; (vi) other than Commercial Affiliate Agreements, any agreement or contract pursuant to the express terms of which the Company or any of its Subsidiaries is currently obligated to pay excess of $500,000 in any one year period in the future which is not terminable by the Company or its Subsidiaries without penalty in excess of $500,000 upon notice of thirty (30) days or less; (vii) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company or any Company Subsidiary of its Subsidiaries after the date of this Agreement hereof of a material amount of assets not in the ordinary course of business or pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company the Company's Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (hviii) any agreement, contract or commitment currently in force to license or provide source code to any third party to manufacture for any product or reproduce any Company product, service or technology or technology; (ix) any agreement, lease, plan, arrangement or other contract or commitment currently in force required to sell or distribute any Company products, be filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K promulgated under the Securities Act other than those currently on file with the SEC (including any parts or components thereof, service or technology except amendments to agreements with distributors or sales representative in the normal course filed as of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below)Form 10-Q for the quarter ended March 31, is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound 2003 that are required to be disclosed filed); or (x) any "standstill" or similar agreement with respect to any equity securities of the Company. (b) Set forth in Section 2.14(b) of the Company Disclosure Letter is a list of the top twenty (20) Commercial Affiliate Agreements (as exceptions measured based on revenues that were earned by the Company during the three (3) months ended June 30, 2003 from advertisers of the Company who received paid introductions through the Company pursuant to this search results or search listing traffic supplied by Commercial Affiliates) (the "TOP COMMERCIAL AFFILIATE AGREEMENTS"). (c) Set forth in Section 4.10 2.14(c) of the Company Disclosure Letter is (A) a list, as of the date hereof, of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any such agreement, contract or commitment, a "Company Contract"Indebtedness (as defined below) in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or any of its SubsidiariesSubsidiaries in an aggregate principal amount in excess of $250,000 is outstanding or may be incurred on the terms thereof and (B) the respective principal amounts currently outstanding thereunder as of the date hereof. For purposes of this Section 2.14(b), "INDEBTEDNESS" shall mean, with respect to any person, without duplication, (A) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (B) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (E) all obligations of such person issued or assumed as the case may be anddeferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person's business), (F) all capitalized lease obligations of such person, (G) all obligations of others secured by any Lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency swap transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the knowledge ordinary course of business), (J) all obligations of such person to purchase securities (or other property) which arises out of or in connection with the sale of the Company, on the other parties thereto, and is in full force and effectsame or substantially similar securities or property, and (iiK) upon consummation all guarantees and arrangements having the economic effect of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or a guarantee of such person of any indebtedness of any other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunderperson.

Agreements, Contracts and Commitments. Neither Company Except as set forth in the Miami Subs Schedules, neither Miami Subs nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any collective bargaining agreements; (b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (c) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directorsemployee, other than those that are not terminable by Company Miami Subs or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability liability, except to the extent general principles of wrongful termination law may limit Miami Subs's or financial obligation any of its subsidiaries' ability to Company.terminate employees at will; (bd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ce) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any business other than indemnification obligation of the Company agreements between Miami Subs or any Company Subsidiary to of its subsidiaries and any of its present or former officers or directors; (df) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company Miami Subs or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rightsperson; (eg) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty; (h) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parententerprise; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement joint marketing or development agreement; (k) any distribution agreement entered into prior to the date of this Agreement(identifying any that contain exclusivity provisions); or (kl) any other agreement, contract or commitment that includes receipts (excluding real and personal property leases) which involve payment by Miami Subs or expenditures any of its subsidiaries under any such agreement, contract or commitment of $1,000,000 100,000 or more individuallyin the aggregate and is not cancelable without penalty within thirty (30) days. Neither Company Miami Subs nor any Company Subsidiariesof its subsidiaries, nor to CompanyMiami Subs's knowledge any other party to a Company any Miami Subs Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary Miami Subs is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, a "Company Miami Subs Contract") in such a manner as would permit any other party to cancel or terminate any such Company Miami Subs Contract, or would permit any other party to seek material damages, which cancellation, termination or damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregatewould have a Material Adverse Effect on Miami Subs.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary is a party to or is bound by: (a) Section 3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each, a “Company Material Contract” and collectively, the “Company Material Contracts”): (i) each Company Contract relating to any bonus, deferred compensation, severance, retention or incentive compensation, under which the Company has any actual or potential liability in excess of $50,000; (ii) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $50,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting agreementor independent contractor services, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are not terminable by the Company on ninety (90) calendar days’ or any Company Subsidiary on no more than thirty (30) days' less notice without liability liability, except to the extent applicable Law or financial obligation general principles of wrongful termination Law may limit the Company’s, or such successor’s ability to Company.terminate employees at will; (biii) each Company Contract relating to any agreement or plan, including, without limitation, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this AgreementContemplated Transactions; (civ) each Company Contract relating to any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license Ordinary Course of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directorsBusiness; (dv) each Company Contract containing (A) any agreement, contract or commitment containing any covenant limiting in any respect which would limit the right freedom of the Surviving Company or any Company Subsidiary to engage in any line of business or to compete with any person Person, or granting would limit the development, manufacture, distribution or commercialization by the Surviving Company of any exclusive distribution rightsof the Company’s products, technology or services, (B) any most-favored nation or other preferred pricing arrangement in favor of a Person other than the Company or any similar term by which any Person is or could become entitled to any benefit, right or privilege that must be at least as favorable to such Person as those offered to any other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than the Company, or (D) any non-solicitation provision; (evi) each Company Contract (A) pursuant to which any agreementPerson granted the Company an exclusive license under any Intellectual Property, contract (B) pursuant to which the Company granted any Person an exclusive license under any Company IP Rights, (C) required to be scheduled on Section 3.12(b) of the Company Disclosure Schedule, or commitment currently (D) required to be scheduled on Section 3.12(c) of the Company Disclosure Schedule; (vii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in force excess of $50,000 pursuant to its express terms and not cancelable without penalty; (viii) each Company Contract relating to the disposition or acquisition by Company of material assets or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesEntity; (fix) any dealer, distributor, joint marketing or development agreement currently in force under which each Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code Contract relating to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guaranteesloans, loans notes or credit agreements agreements, security agreements, or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $50,000, or creating any material Encumbrances, other than Permitted Encumbrances, with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company; (jx) any settlement agreement entered into prior each Company Contract requiring payment by or to the Company after the date of this AgreementAgreement in excess of $50,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development, or other agreement currently in force under which the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company, or (D) any Contract to license any patent, trademark registration, service mark registration, trade name, or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for material Company Contracts entered into in the Ordinary Course of Business; (xi) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions; (xii) each Company Real Estate Lease; (xiii) each Company Contract that is a material contract as defined in Item 601(b)(10) of Regulation S-K as promulgated under the Securities Act; (xiv) each Company Contract to which the Company is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $50,000; or (kxv) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company, and (A) which involves payment or receipt by the Company after the date of this Agreement under any such agreement, contract or commitment that includes receipts of more than $50,000 in the aggregate, or expenditures obligations after the date of this Agreement in excess of $1,000,000 50,000 in the aggregate or more individually(B) that is material to the business or operations of the Company taken as a whole. (b) The Company has delivered or made available to Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto, other than the Company Material Contracts relating to any bonus, deferred compensation, severance, retention or incentive compensation, which have been provided to Parent or its counsel via email and are listed on Section 3.13(a) or 3.17(a) of the Company Disclosure Schedule. Neither There are no Company nor any Material Contracts that are not in written form. The Company Subsidiarieshas not, nor to the Company's knowledge ’s Knowledge, as of the date of this Agreement has any other party to a Company Contract (as defined below)Material Contract, is in breachbreached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") Material Contract in such a manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each which would reasonably be expected to have a Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge Material Adverse Effect. As of the Companydate of this Agreement, on the other parties theretoeach Company Material Contract is valid, binding, enforceable, and is in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company under any Company Material Contract or any other material term or provision of any Company Material Contract, and (ii) upon consummation of to the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge Knowledge of the Company, no other party Person has indicated to the Company in writing that it desires to renegotiate, modify, not renew or cancel any Company Contract is in material breach thereof or material default thereunderMaterial Contract.

Agreements, Contracts and Commitments. Neither Except as set forth n the attached Schedule A, neither the Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any Any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation to Company.obligation; (b) any Any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any Any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any business other than indemnification obligation of agreements between the Company or any Company Subsidiary to of its subsidiaries and any of its officers or directors; (d) any Any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any Any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries;enterprise; or (f) any dealer, distributor, Any material joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither the Company nor any Company Subsidiariesof its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined belowherein), is in breachhas breached, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 of the type described in clauses (a) through (f) above (any such agreement, contract or commitment, a "Company ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek damages, which would be reasonably likely to be material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither (a) Section 2.12(a) of the Company nor Schedule sets forth all contracts that are material to the business or operations of the Company (including its subsidiaries) or which by their terms seek to limit or define those activities in which the Company and its subsidiaries is (or the Surviving Corporation would be) permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Subsidiary Schedule, the Company does not have, is not a party to or nor is it bound by: (ai) any collective bargaining agreements; (ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations; (iii) Except as set forth in Section 2.12(a)(iii) of the Company Schedule, any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements; (iv) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directorsindividual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other than those that are terminable by Company or any Company Subsidiary on no more than thirty (30) days' notice without liability or financial obligation to Company.organization; (bv) any agreement or plan, plan (including, without limitation, any stock option plan, stock appreciation right rights plan or stock purchase plan, ) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreementhereby or thereby; (cvi) any fidelity or surety bond or completion bond; (vii) any lease of real or personal property involving future payments in excess of $10,000, other than as set forth in Section 2.10(a) of the Company Schedule; (viii) any agreement of indemnification indemnification, warranty, guaranty or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale suretyship or license of software products in the ordinary course of business, or (ii) any indemnification obligation of otherwise obligating the Company or any Company Subsidiary subsidiary to its officers assume or directorsincur any obligation or liability of a third-party; (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rightsperson; (ex) any agreement, contract or commitment currently relating to capital expenditures or involving future payments in force excess of $10,000 in any single year or in any specific circumstance, except as set forth in Section 2.12(a)(x) of the Company Schedule; (xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition by Company of assets, properties or any Company Subsidiary after the date interest in any business enterprise, in each case outside of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of Company’s business; (hxii) any mortgage, indenture, loan or credit agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements security agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above, other than the lines of credit described in Section 2.30 of the Company Schedule and as set forth in Section 2.12(a)(xii) of the Company Schedule, all of which will be paid in full and terminated as of the Effective Time, unless Parent requests otherwise reasonably prior to the Effective Time; (jxiii) any settlement agreement entered into prior to purchase order or contract for the date purchase of this Agreement; orraw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business; (kxiv) any construction contracts; (xv) any distribution, joint marketing, licensing or development agreement; (xvi) any insurance policies, other than as described in Section 2.24 of the Company Schedule; (xvii) any other agreement, contract or commitment that includes receipts involves or expenditures could result in aggregate payments to or by the Company of $1,000,000 10,000 or more individually. Neither or which is not cancelable by the Company nor without penalty within thirty (30) days. (b) None of the Company or any Company Subsidiariesof its subsidiaries has breached, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation violated or default defaulted under, and neither Company nor any Company Subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreementsagreement, contracts contract or commitments commitment to which Company or any Company Subsidiary it is a party or by which it is or its assets or properties are or may be bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company “Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) ”). Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and Contract is in full force and effecteffect and is not subject to any breach, default or violation thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract (iiincluding the Material Contracts) upon consummation as are required or prudent to obtain in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements in order to avoid any conflict with, any violation of, or default under (with or without notice or lapse of time, or both), or to avoid giving rise to any right of termination, cancellation or acceleration of any obligation or loss of any benefit under, any Contract (the “Requisite Consents”) and such Requisite Consents are listed in Section 2.12(b) of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunderSchedule.

Agreements, Contracts and Commitments. Neither (a) Schedule 2.8(a) identifies, and the Company nor has made available to Merger Sub, true, complete and correct copies of each of the following Contracts to which the Company or any Company Subsidiary of its Subsidiaries is a party to or is bound by:the extent not available in complete and unredacted form on ▇▇▇▇▇ (each, a “Company Material Contract” and, collectively, the “Company Material Contracts”): (ai) each Contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the Securities and Exchange Commission on the date of this Agreement; (ii) any employment agreement (other than (x) Contracts for “at will” employment that do not contain any severance obligations and (y) non-competition Contracts benefiting the Company between the Company and any employee of the Company or consulting any of its Subsidiaries), and any agreement, contract or commitment with pursuant to which the Company or any of its Subsidiaries is or may become obligated to make any severance, termination or similar payment to any current or former employee, executive officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by the Company or any of its Subsidiaries; (iii) any Contract that limits (or would limit after the date hereof) the freedom or ability of the Company Subsidiary or any of its Subsidiaries to compete in any material manner in any line of business or in any geographic area; (iv) any Contract (other than Company Stock Options) to which the Company or any of its Subsidiaries is a party (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities of any of the Company or any of its Subsidiaries, (B) providing any Person with any preemptive right or any similar right with respect to any securities of any of the Company or any of its Subsidiaries, or (C) providing the Company or any of its Subsidiaries with any right of first refusal with respect to, or right to repurchase or redeem, any securities of the Company or any of its Subsidiaries; (v) any Contract (or group of related agreements with the same third parties) under which the Company or any of its Subsidiaries created, incurred, assumed or guaranteed any Funded Debt or letters of credit (other than Contracts between the Company and any of its Subsidiaries or between Subsidiaries of the Company); (vi) any Contract containing “standstill” or similar provisions currently in effect; (vii) any Contract that contemplates or involves the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries in an amount or having a value in excess of $250,000 in the aggregate for, or contemplates or involves the performance of services by or to the Company or any of its Subsidiaries having a value in excess of $250,000 in the aggregate; (viii) any partnership, limited liability company, joint venture or other similar agreement that is material to the Company and its Subsidiaries; (ix) Contracts under which the Company or any of its Subsidiaries has (x) lent or promised to lend, or made any other loan or advance to, or other investment in, any other Person, in each case, in excess of $50,000 or (y) lent or promised to lend, or made any other loan or advance to an executive officer or director of the Company or any of its Subsidiaries; (x) distribution or franchise Contracts related to the assets or the businesses of the Company or any of its Subsidiaries, except for such Contracts that are cancelable on no not more than thirty (30) days' ’ notice by the Company or any of its Subsidiaries without liability penalty or financial obligation increased cost; (xi) consulting, agency or advertising Contracts related to Companythe assets or the businesses of the Company or any of its Subsidiaries, and involving payment to or by the Company or any of its Subsidiaries in excess of $250,000, except for such Contracts that are cancelable on not more than thirty (30) days’ notice by the Company or any of its Subsidiaries without penalty or increased cost; (xii) Contracts relating to licenses or royalties, whether the Company or any of its Subsidiaries is the licensor or licensee thereunder (other than with respect to off-the-shelf or prepackaged software); (xiii) Contracts for the purchase or sale of any business, corporation, partnership, joint venture, association or other business organization or any division, operating unit or product line of the Company or any of its Subsidiaries; (xiv) Contracts for the lease (whether the Company or any of its Subsidiaries is lessee or lessor thereunder) or rental of any Rental Fleet with (A) a term of one year or longer or (B) where the aggregate payments under any lease where the Company or any of its Subsidiaries is the lessee thereunder are more than $500,000; Schedule 2.8(a)(xiv) lists, as of February 28, 2005, the original cost basis of all Rental Fleet subject to leases where the Company or any of its Subsidiaries is the lessee thereunder required to be disclosed on such schedule pursuant to this clause (xiv); (xv) powers of attorney; (xvi) Contracts under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries; (xvii) any Contract granting another Person an option to purchase or sell (A) personal property or assets of the Company or any of its Subsidiaries having a value in excess of $250,000 or (B) any Owned Real Property; (xviii) Contracts relating to commissions based on amounts paid for the sale, lease or rental of Rental Fleet to be paid by the Company or any of its Subsidiaries to any Person, other than an employee of the Company or any of its Subsidiaries, that are not terminable at the discretion of the Company or any of its Subsidiaries; (xix) Contracts relating to suretyship or performance bond, whether the Company or any of its Subsidiaries is the beneficiary or obligor thereunder; (xx) Contracts relating to material indemnification or contribution obligations of the Company or any of its Subsidiaries, other than pursuant to the Contracts listed pursuant to Section 2.8(a)(viii); and (xxi) Government Contracts involving payments in excess of $100,000. (b) Neither the Company nor any agreement of its Subsidiaries is currently in material breach of, or plan, including, without limitation, has received in writing any stock option plan, stock appreciation right plan claim or stock purchase planthreat that it is currently in material breach of, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any Company Material Contract. Neither the Company nor any of the agreements, contracts or commitments to which Company or its Subsidiaries has received notice of a claim for indemnification under any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 Material Contract. (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.c) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and Material Contract is in full force and effecteffect and, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To to the knowledge of the Company, no other party to any Company Contract such contract is in default in any material breach thereof respect. (d) Schedule 2.8(d) is a true and complete list as of April 1, 2005 of all purchase orders for Rental Fleet and Property, Plant and Equipment (as defined under GAAP) submitted by the Company or any of its Subsidiaries for which the equipment has not been received by the Company or its Subsidiaries as of the date hereof. (e) To the Company’s knowledge, each of the Company’s and its Subsidiaries’ accounting and procurement systems are in compliance in all material default thereunderrespects with all material governmental regulations and requirements applicable to Government Contracts. (f) To the Company’s knowledge, with respect to each Government Contract for which performance has not been or was not completed or final payment has not been or was not received, in either case, prior to the date that is three years prior to the date of this Agreement: (i) the Company and each of its Subsidiaries have complied with all material terms and conditions of such Government Contract; (ii) the Company and each of its Subsidiaries have complied with all material requirement of Law expressly pertaining to such Government Contract; (iii) all facts set forth in or acknowledged by any representations and certifications executed by the Company in connection with a Government Contract were complete and correct in all material respects as of their effective date, and the Company and each of its Subsidiaries have complied in all material respects with any material obligations imposed by such representations and certifications; (iv) neither the United States Government nor any prime contractor, subcontractor or other Person has notified the Company or any of its Subsidiaries, either orally or in writing, that the Company or any of its Subsidiaries has breached or violated in any material respect any Law, or any material certification, representation, clause, provision or requirement pertaining to such Government Contract; and (v) no termination for convenience, termination for default, cure notice or show cause notice is in effect as of the date hereof pertaining to any Government Contract, except any notice that, individually or in the aggregate, has not had, and could not reasonably be expected to have, a Material Adverse Effect on the Company. (g) Neither the Company nor any of its Subsidiaries nor to the knowledge of the Company any of their respective directors or officers is (or during the last three (3) years has been) under any material administrative, civil or criminal investigation, or indictment or audit by any Governmental Authority with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract (other than in the ordinary course of business consistent with past practice, such as routine DCAA audits, in which no such irregularities, misstatements or omissions were identified that, individually or in the aggregate, had, or could reasonably be expected to have, a Material Adverse Effect on the Company); and during the last three (3) years, to the Company’s knowledge, neither the Company nor any of its Subsidiaries has conducted or initiated any internal investigation (other than in the ordinary course of business) or made a voluntary disclosure to the United States Government, with respect to any alleged material irregularity, misstatement or omission arising under or relating to any Government Contract. (h) To the Company’s knowledge, there are (i) no outstanding claims against the Company or any of its Subsidiaries, either by the United States Government or by any prime contractor, subcontractor, vendor or other third party, arising under or relating to any Government Contract; (ii) no formal disputes between the Company or any its Subsidiaries, on the one hand, and the United States Government, on the other hand, under the Contract Disputes Act or any other Laws; and (iii) and no disputes between the Company or any of its Subsidiaries, on the one hand, and any prime contractor, subcontractor or vendor, on the other hand, arising under or relating to any Government Contract, except in each case, for any claim or dispute where the amount in dispute is not in excess of $100,000. (i) Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge any of its or the Subsidiary’s directors or officers is (or during the last three (3) years has been) suspended or debarred from participation in the award of contracts with any Governmental Authority or has been (or during such period was) found nonresponsible by any Governmental Authority (it being understood that debarment and suspension and nonresponsibility does not include ineligibility to bid for certain contracts due to generally applicable bidding requirements). (j) No Government Contract to which the Company or any of its Subsidiaries is a party has an aggregate funded or unfunded backlog in excess of $500,000.

Agreements, Contracts and Commitments. Neither Company Summit nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanySummit's Board of Directors, other than those that are terminable by Company Summit or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company.the extent general principles of wrongful termination law may limit Summit's or any of its subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than than: (i) any agreement of indemnification or guaranty entered into in the ordinary course of business, (ii) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (iiiii) any agreement of indemnification entered into in connection with services performed in the ordinary course of business, and (iv) any indemnification obligation of the Company agreement between Summit or any Company Subsidiary to of its officers subsidiaries and any of their respective officers, directors or directorsemployees; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company Summit or any Company Subsidiary of its subsidiaries to engage in any line of business which is material to Summit and its subsidiaries taken as a whole or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Summit or any Company Subsidiary of its subsidiaries or subsequent parent or sister companies after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Summit has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiariesenterprise; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company Summit or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) 90 days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or any material agreement pursuant to which Company Summit or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company Summit or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than that is material to Summit and its subsidiaries taken as a whole, except for (i) any agreement, contract or commitment pursuant to which source code is provided solely for maintenance purposes, and (ii) any source code escrow agreements or other similar arrangements agreement entered into in the normal ordinary course of business;business that solely contains provisions relating to the release of source code if Summit and/or any of its subsidiaries ceases to do business or fails to provide appropriate maintenance; or (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Summit product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative as a distributor in the normal course of business cancelable without penalty upon notice of ninety business. Each Summit Contract (90as defined below) days or less is in full force and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individuallyeffect. Neither Company Summit nor any Company Subsidiariesof its subsidiaries, nor to CompanySummit's knowledge any other party to a Company Contract (as defined below)Summit Contract, is in breach, violation or default under, and neither Company Summit nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company Summit or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions in the Summit Schedules pursuant to this clauses (a) through (h) above or pursuant to Section 4.10 3.9 hereof (any such agreement, contract or commitment, a "Company ContractSUMMIT CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Summit Contract, or would permit any other party to seek material damages or other remedies damages, which would be reasonably likely to exceed $1 million (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Except as disclosed in Section 2.14 of the Disclosure Schedule or elsewhere in the Disclosure Schedule, the Company nor any Company Subsidiary does not have and is not a party to or is bound byto: (a) any collective bargaining agreements, (b) any agreements that contain any unpaid severance liabilities or obligations, (c) any bonus or incentive compensation plans or arrangements, except for commission plans with sales persons, (d) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directorsindividual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other than those that are organization, in each case which is not terminable by the Company or any Company Subsidiary on no more than thirty (30) days' days notice without liability or financial obligation to the Company., except to the extent general principles of wrongful termination law may limit the Company's ability to terminate employees at will, (be) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;, (cf) any fidelity or surety bond or completion bond, (g) any lease of personal property having a value individually in excess of $25,000, (h) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in the ordinary course of business except for agreements for indemnification provided by the Company to licensees or other third parties in connection with the sale or license of the Company's software products in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors;services, (di) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any Company Subsidiary to engage in any line of its business or to compete with any person entity except for agreements not to compete provided by the Company to licensees or granting any exclusive distribution rights;other third parties in connection with the sale or license of the Company's software products or services, (ej) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $25,000, over the life of any such agreement, contract or commitment, (k) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets of the Company not in the ordinary course of business or pursuant to which Company has the disposition or acquisition of any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries;enterprise, (fl) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or extension of credit;credit by the Company, including guaranties referred to in clause (h) hereof, (jm) any settlement agreement entered into prior to purchase order or contract for the date purchase of this Agreement; orraw materials or acquisition of assets involving $5,000 or more, (kn) any construction contracts, (o) any distribution, joint marketing or development agreement, (p) any other agreement, contract or commitment that includes receipts or expenditures which involves the payment of $1,000,000 50,000 or more individuallyby the Company and is not cancelable without penalty within thirty (30) days, or (q) any agreement which has a value of $50,000 or more. Neither The Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default underhas not breached, and neither Company nor has not received in writing any Company Subsidiaries claim, and none of the Major Stockholders has received any written notice that it the Company has breached, violated or defaulted under, any of the material terms or conditions of any of the agreementsmaterial agreement, contracts contract or commitments commitment to which Company or any Company Subsidiary is a party or by which it is bound that are is required to be disclosed as exceptions to this in Section 4.10 (any such agreement, contract or commitment, a "Company Contract") 2.14 of the Disclosure Schedule in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregatesame.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither (a) Schedule 2.19 hereto sets forth a complete and accurate list of the following Contracts to which the Company nor or any Company Subsidiary of its Subsidiaries is a party to or by which any of them is bound by:(each, a “Material Company Contract” and collectively, the “Material Company Contracts”): (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary on no more than thirty (30) days' notice without liability or financial obligation to Company. (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement Contract providing for payments (present or future) to the Company or any of indemnification entered into its Subsidiaries in connection with excess of $1,000,000 in the sale aggregate; (ii) any Contract under or license in respect of software products which the Company or any of its Subsidiaries presently have any liability or obligation of any nature whatsoever (absolute, contingent or otherwise) in excess of $500,000 in the aggregate; (iii) any Contract for or relating to any borrowing of money by or from the Company or any of its Subsidiaries and by or to any officer, director, employee or shareholder of the Company or any of its Subsidiaries (“Insider”); (iv) any Contract for or relating to any borrowing of money from an Insider by the Company; (v) any guaranty, direct or indirect, by the Company, a Subsidiary or any Insider of the Company of any obligation for borrowings, or otherwise, excluding endorsements made for collection in the ordinary course of business, or (ii) any indemnification obligation of the Company or any Company Subsidiary to its officers or directors; (dvi) any agreement, contract Contract of employment or commitment containing any covenant limiting in any respect the right of Company or any Company Subsidiary to engage in any line of business or to compete with any person or granting any exclusive distribution rightsmanagement; (evii) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not Contract made other than in the ordinary course of business or pursuant (x) providing for the grant of any preferential rights to which purchase or lease any asset of the Company has or any material ownership interest in of its Subsidiaries or (y) providing for any corporationright (exclusive or non-exclusive) to sell or distribute, partnershipor otherwise relating to the sale or distribution of, joint venture any product or other business enterprise other than service of the Company or any of its Subsidiaries; (fviii) any dealer, distributor, joint marketing Contract providing for the obligation to register any share capital or development agreement currently in force under which other securities of the Company or any of its Subsidiaries with any Governmental Entity; (ix) any Contract providing for the obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or shares of other Persons; (x) any collective bargaining agreement with any labor union; (xi) any lease or similar arrangement for the use by the Company Subsidiary has continuing material obligations to jointly market or any productof its Subsidiaries of real property or personal property where the annual lease payments are greater than $100,000 (other than any lease of vehicles, technology office equipment or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, operating equipment made in the case ordinary course of dealerbusiness); (xii) any Contract granting or purporting to grant, distributor or joint marketing agreementsotherwise in any way relating to, any mineral rights or any other interest (including, without limitation, a leasehold interest) in real property; and (xiii) any Contract to which involve payments by or to any Insider of the Company or any of $500,000 or moreits Subsidiaries, or any material agreement pursuant to which Company entity owned or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be ownedcontrolled by an Insider, in whole or in part, by Company or Company Subsidiaries;is a party. (gb) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements Each Material Company Contract was entered into in the normal course of business; (h) any agreementordinary course, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effecteffect and, to the Company’s Knowledge, is valid and (ii) binding upon consummation and enforceable against each of the transactions contemplated parties thereto, except insofar as enforceability may be limited by this Agreementapplicable bankruptcy, shall continue insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies. True, correct and complete copies of all Material Company Contracts (or written summaries in full force and effect without penalty the case of oral Material Company Contracts) have been made available to Parent or other adverse consequence. To Parent’s counsel. (c) Except as set forth in Schedule 2.19, neither the knowledge Company nor, to the best of the Company’s Knowledge, any other party thereto is in breach of or in default under, and no other event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Company Contract, and no party to any Material Company Contract is has given any written notice of any claim of any such breach, default or event, which, individually or in material breach thereof or material default thereunderthe aggregate, are reasonably likely to have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole.

Agreements, Contracts and Commitments. Neither Company nor any Company Subsidiary of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company.; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any indemnification obligation business of the Company or any Company Subsidiary to its officers or directorsCompany; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company or any Company Subsidiary of its subsidiaries to engage in any line of business (other than with respect to limitations on the distribution by Company of certain content and service providers), or to compete with any person or granting any exclusive distribution rightsrights of Company services; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company SubsidiariesCompany's subsidiaries; (fi) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or moreless, or (ii) any material agreement pursuant to which Company or any Company Subsidiary has of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiariesany of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less except for agreements, contracts or commitments with an annual value of less than $100,000; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course of businessthat is material to Company and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except those agreements with customers, distributors or sales representative representatives made in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that includes involves annual expenditures or receipts or expenditures of $1,000,000 2,500,000 or more individually. Neither Company nor any Company Subsidiariesof its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary of its subsidiaries is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 in the Company Schedule (any such agreement, contract or commitment, a "Company ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.

Agreements, Contracts and Commitments. Neither Company Except as set forth in the Award Schedules, neither Award nor any Company Subsidiary of its subsidiaries is a party to or is bound by: : (a) any collective bargaining agreements; (b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (c) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee employee, or member of CompanyAward's Board of Directors, other than those that are terminable by Company Award or any Company Subsidiary of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company. the extent general principles of wrongful termination law may limit Award's or any of its subsidiaries' ability to terminate employees at will; (bd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; ; (ce) any agreement of indemnification or any guaranty other than (i) any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business, or (ii) any business other than indemnification obligation of the Company agreements between Award or any Company Subsidiary to of its subsidiaries and any of its officers or directors; ; (df) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company Award or any Company Subsidiary of its subsidiaries to engage in any line of business or to compete with any person or granting any exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any Company Subsidiary after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any Company Subsidiary has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less and, in the case of dealer, distributor or joint marketing agreements, which involve payments by or to the Company of $500,000 or more, or any material agreement pursuant to which Company or any Company Subsidiary has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or Company Subsidiaries; person; (g) any agreement, contract or commitment currently relating to capital expenditures and involving future obligations in force to provide source code to any third party for any product or technology other than source code escrow agreements or other similar arrangements entered into in the normal course excess of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, including any parts or components thereof, service or technology except agreements with distributors or sales representative in the normal course of business $150,000 and not cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any material mortgages, indentures, guarantees, loans or credit agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into prior to the date of this Agreementpenalty; or (k) any other agreement, contract or commitment that includes receipts or expenditures of $1,000,000 or more individually. Neither Company nor any Company Subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any Company Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any Company Subsidiary is a party or by which it is bound that are required to be disclosed as exceptions to this Section 4.10 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate.) Each Company Contract: (i) is valid and binding on the Company or its Subsidiaries, as the case may be and, to the knowledge of the Company, on the other parties thereto, and is in full force and effect, and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect without penalty or other adverse consequence. To the knowledge of the Company, no other party to any Company Contract is in material breach thereof or material default thereunder.A-14