Common use of Agreements, Contracts and Commitments Clause in Contracts

Agreements, Contracts and Commitments. Neither Apex nor any 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 Apex's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apex; (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 any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area 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 Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any 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 has a value of $1,000,000 or more individually. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.

Agreements, Contracts and Commitments. Neither Apex nor any Section 2.9 of its subsidiaries is the CombiMatrix Disclosure Schedule identifies the following CombiMatrix Contracts, effective as of the date of this Agreement (each, a party to or is bound by:“CombiMatrix Material Contract” and collectively, the “CombiMatrix Material Contracts”): (a) each CombiMatrix 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 Apex's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability other employee benefit plans or financial obligation to Apexarrangements; (b) each CombiMatrix 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 CombiMatrix or its Subsidiaries on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit CombiMatrix’s, CombiMatrix’s Subsidiaries’ or such successor’s ability to terminate employees at will; (c) each CombiMatrix 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; (cd) each CombiMatrix Contract relating to any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale Ordinary Course of Business other than indemnification agreements between CombiMatrix and any of its respective officers or license of computer or communications hardware products in the ordinary course of businessdirectors; (de) each CombiMatrix Contract relating to any agreement, contract or commitment containing (A) any covenant limiting in any respect the right freedom of Apex CombiMatrix, its Subsidiaries or any of its subsidiaries the Surviving Corporation to engage in any line of business, conduct business in any geographic area 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; (ef) each CombiMatrix Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $25,000 and not cancelable without penalty; (g) each CombiMatrix Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex of material assets or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex and its subsidiaries taken as a wholeEntity; (h) any agreement, contract or commitment currently in force each CombiMatrix Contract relating to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any 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 in excess of $25,000 or creating any material Encumbrances with respect to any assets of CombiMatrix or any CombiMatrix Subsidiary or any loans or debt obligations with officers or directors of CombiMatrix; (i) each CombiMatrix Contract relating to (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services, products or technology with respect to any development activities of CombiMatrix (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which CombiMatrix or its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which CombiMatrix or its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by CombiMatrix or such CombiMatrix Subsidiary; or (iv) any Contract currently in force to license any third party to manufacture or produce any CombiMatrix product, service or technology or any Contract currently in force to sell, distribute or commercialize any CombiMatrix products, technology or services except agreements with distributors or sales representatives in the Ordinary Course of Business; (j) each CombiMatrix Contract with any settlement agreement entered into within five Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to CombiMatrix in connection with the Contemplated Transactions; (5k) years prior to the date of this each CombiMatrix IP Right Agreement; or (kl) any other agreement, contract or commitment that has a value (i) which involves payment or receipt by CombiMatrix or its Subsidiaries under any such agreement, contract or commitment of $1,000,000 25,000 or more individuallyin the aggregate or obligations after the date of this Agreement in excess of $25,000 in the aggregate, or (ii) that is material to the business or operations of CombiMatrix and its Subsidiaries. CombiMatrix has delivered to Invitae accurate and complete (except for applicable redactions thereto) copies of all CombiMatrix Material Contracts, including all amendments thereto. There are no CombiMatrix Material Contracts that are not in written form. Neither Apex CombiMatrix nor any of its subsidiariesSubsidiaries has, nor to Apex's knowledge CombiMatrix’s Knowledge as of the date of this Agreement has any other party to an Apex Contract (as defined below)a CombiMatrix Material Contract, is (breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") CombiMatrix Material Contract in such a manner as would permit any other party to cancel or terminate any such Apex CombiMatrix Material Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breachesdamages. As to CombiMatrix and its Subsidiaries, violations or defaults, in the aggregate). Each Apex each CombiMatrix Material Contract is valid, binding, enforceable and in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by subject to: (i) laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally insolvency and the relief of debtors; and (ii) general principles rules of equity (regardless law governing specific performance, injunctive relief and other equitable remedies. The consummation of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to Contemplated Transactions shall not result in any material payment or payments becoming due from CombiMatrix, any CombiMatrix Subsidiary, the Surviving Corporation or Invitae to any Person under any CombiMatrix Contract or give any Person the right to terminate or alter the provisions of any CombiMatrix Contract. No Person is renegotiating, or has a right pursuant to the terms of any CombiMatrix Material Adverse Effect on ApexContract to change, any material amount paid or payable to CombiMatrix under any CombiMatrix Material Contract or any other material term or provision of any CombiMatrix Material Contract.

Agreements, Contracts and Commitments. (a) Neither Apex Company nor any 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 ApexCompany's Board board of Directorsdirectors, other than those that are terminable by Apex Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexthe 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 any agreement of indemnification entered into in connection with the sale or license or purchase of computer products or communications hardware products services in the ordinary course of business; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex Company or any of its subsidiaries to engage in any line of business, conduct business in any geographic area 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 Apex Company or any 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 Apex Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than ApexCompany's subsidiaries; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which Apex Company or any 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, or any material agreement pursuant to which Apex Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex Company or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any 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 has a value of $1,000,000 or more individually. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.

Agreements, Contracts and Commitments. Neither Apex Company nor any of its subsidiaries 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 Apex's Click2learn’s Board of Directors, other than those that are terminable by Apex Click2learn or any of its subsidiaries Subsidiaries on no more than thirty (30) days' ’ notice without liability or financial obligation to ApexClick2learn; (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 any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business, that would not reasonably be expected to have a Material Adverse Effect on Click2learn, or any guaranty of the obligations of a Subsidiary of Click2learn; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex Click2learn or any of its subsidiaries Subsidiaries to engage in any line of business, conduct business in any geographic area 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 Apex Click2learn or any of its subsidiaries Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Apex Click2learn has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesClick2learn’s Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex Click2learn or any of its subsidiaries 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, or any material agreement pursuant to which Apex Click2learn or any of its subsidiaries Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex Click2learn or any of its subsidiaries 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 that is material to Apex Click2learn and its subsidiaries Subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex Click2learn product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex Click2learn products, 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 CybexDocent; (i) any 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 three (53) 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 that, either individually or taken together with all other contracts with the same party, (i) has a value 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 Apex Click2learn nor any of its subsidiariesSubsidiaries, nor to Apex's Click2learn’s knowledge any other party to an Apex a Click2learn Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex Click2learn nor any of its subsidiaries 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 Apex Click2learn or any of its subsidiaries Subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Click2learn Schedules (any such agreement, contract or commitment, a "APEX CONTRACT"“Click2learn Contract”) in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.

Agreements, Contracts and Commitments. Neither Apex As of the date hereof, except as provided in Company Schedule 2.17, neither Company nor any 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 ApexCompany's Board of Directors, other than those that are terminable by Apex Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to ApexCompany, (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 any agreement of indemnification entered into in connection with the sale third party indebtedness or license of computer obligations of officers, directors, employees or communications hardware products in the ordinary course agents of businessCompany; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex Company or any of its subsidiaries to engage in any line of business, conduct 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 Apex Company or any 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 Apex Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than ApexCompany's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 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 that is material to Apex and its subsidiaries taken as services of, or enter into a wholecommercial relationship with, another person; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ig) any 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 within five relating to any claim or suit; (5i) years prior to the date of this Agreementany real property lease covering more than 5,000 square feet; or (kj) any other agreement, lease, contract or commitment that has a value involves remaining obligations of Company of $1,000,000 10,000 or more individually. Neither Apex Company nor any of its subsidiaries, nor to ApexCompany's knowledge any other party to an Apex a Company Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex Company nor any 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 Apex Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Company Schedules (any such agreement, contract or commitment, a "APEX COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.

Agreements, Contracts and Commitments. Neither Apex Except as set forth in ------------------------------------- the OSI Disclosure Letter, neither OSI nor any 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 Apex's Board of Directorsemployee, other than those that are not terminable by Apex OSI or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation to Apexliability; (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 any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessbusiness other than indemnification agreements between OSI or any 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 Apex OSI or any of its subsidiaries to engage in any line of business, conduct business in any geographic area 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 Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesenterprise; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ij) any 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 within five (5) years prior to the date of this Agreementor royalty agreement; or (kl) any other agreement, contract or commitment that has a value (excluding real and personal property leases) which require payment by OSI or 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 Apex OSI nor any of its subsidiaries, nor to ApexOSI's knowledge any other party to an Apex OSI Contract (as defined below), is (has breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries OSI is a party or by which it is bound that are required to be disclosed of the type described in the Apex Schedules clauses (a) through (l) above (any such agreement, contract or commitment, a an "APEX CONTRACTOSI Contract") in such a manner as would permit any other party to cancel or terminate any such Apex 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 aggregate). Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as which would not, individually or in the aggregate, be reasonably expected to result in have a Material Adverse Effect on ApexOSI.

Agreements, Contracts and Commitments. Neither Apex nor any Except as set forth in Schedule 2.17, as of the date hereof, DSNC is not a party to, is not bound by, and none of its subsidiaries is a party to or is bound byproperties 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 ApexDSNC's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries DSNC on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Apexthe 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 any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessbusiness other than indemnification agreements between DSNC and any of its officers or directors; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries DSNC to engage in any line of business, conduct business in any geographic area 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 Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesenterprise; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or lessforce; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology 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 agreement entered into in the ordinary course of business that is material contains provisions relating to Apex and its subsidiaries taken as a wholethe 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 Apex DSNC product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any mortgagescontinuing contract for the future purchase, indenturessale or manufacture of products, guaranteesmaterial, loans supplies, equipment or credit agreements, security 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 within five contract providing for the development of software (5other than contracts with consultants) years prior to the date for, or license of this Agreement; orsoftware 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 has for the borrowing of money, for a value line of $1,000,000 credit or more individually. Neither Apex nor any for a leasing transaction of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any 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 Apex or any of its subsidiaries is a party or by which it is bound that are type required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable capitalized in accordance with its termsStatement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board; or (l) any written agreement regarding intercompany loans, except (a) that the enforcement thereof may be limited by (i) bankruptcyrevenue or cost sharing, insolvencyownership or license of DSNC IP Rights, reorganization, moratorium intercompany royalties or other dividends or similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexmatters.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries Except as set forth on Schedule 2.12(a), the Company does not have, is not a party to or nor is it bound by, and neither Healtheon nor the Acquisition Sub will be bound, by virtue of the transactions contemplated hereby, by: (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 Apex's Board of Directors, other than those that are terminable by Apex individual consultant or salesperson or any of its subsidiaries 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 Apex;the Company, (bv) any operating agreement or other agreement relating to the operations of any business organization, including the Company, (vi) any agreement or 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 value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;, (cvii) any fidelity or surety bond or completion bond, (viii) any lease of personal property having a value individually in excess of $15,000, (ix) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business;guaranty, (dx) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area 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 or acquisition by Apex or any capital expenditures and involving future payments in excess 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries;$15,000, (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (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 that is material to Apex and its subsidiaries taken as a whole;business enterprise outside the ordinary course of the Company's business, (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixiii) any 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 (viii) hereof, (jxiv) any settlement purchase order or contract for the purchase of raw materials involving $15,000 or more, (xv) any construction contracts, (xvi) any distribution, joint marketing or development agreement, (xvii) any agreement entered into within five (5) years prior pursuant to which the date of this Agreement; Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or (kxviii) any other agreement, contract or commitment that has a value of involves $1,000,000 15,000 or more individuallyor is not cancelable without penalty within thirty (30) days. Neither Apex nor any of its subsidiariesExcept for such alleged breaches, nor to Apex's knowledge any other party to an Apex Contract (as defined below)violations and defaults, is (or with nothing more than notice and/or the passage of time will be) in and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, and neither Apex nor any of its 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 to which Apex or any of its subsidiaries is a party or by which it is bound that are commitment required to be disclosed in the Apex Schedules set forth on Schedule 2.12(a) or Schedule 2.11(b) (any such agreement, contract or commitment, a "APEX COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Company Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex effect and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the knowledge of Apex, each of the other parties Company pursuant thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries is a party to (a) Except as set forth in Exhibit C, the Company does not have, or is --------- not bound by: (ai) any collective bargaining agreement, (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 Apex'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 Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apex;organization, (bv) any agreement or 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 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 fidelity or surety bond or completion bond, (vii) any lease of personal property having a value individually in excess of $25,000, (viii) any agreement of indemnification or any guaranty guaranty, other than any agreement of indemnification entered into as set forth in connection with the sale or license of computer or communications hardware products agreements listed in the ordinary course of business;Exhibit C, --------- (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rights;person, (ex) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any capital expenditures and involving future payments in excess 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries;$25,000, (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gxi) 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 that is material to Apex and its subsidiaries taken as a whole;business enterprise outside the ordinary course of the Company's business, (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixii) any 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 (viii) hereof, (jxiii) any settlement agreement entered into within five purchase order or contract for the purchase of materials involving $25,000 or more, (5xiv) years prior to the date of this Agreement; any construction contracts, (xv) any distribution, joint marketing or development agreement, or (kxvi) any other agreement, contract or commitment that has a value of involves $1,000,000 25,000 or more individually. Neither Apex nor any of its subsidiariesor is not cancelable without penalty within thirty (30) days. (b) The Company has not breached, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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, license or commitments commitment to which Apex or any of its subsidiaries it is a party party, by which it benefits or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract contract, license or commitment, a "APEX CONTRACTContract") in ), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a manner as would permit any other party to cancel breach, violation or terminate any such Apex Contractdefault with the lapse of time, giving of notice 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)both. Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex effect and, except as otherwise disclosed in Exhibit C, is not subject to any default thereunder by any party obligated to --------- the Company pursuant thereto. The Company has obtained, or will obtain prior to the knowledge Closing Date, all necessary consents, waivers and approvals of Apex, each of parties to any Contract as are required thereunder in connection with the other parties thereto, enforceable in accordance with its terms, except (a) Merger so that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter all such Contracts will remain in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in without modification after the aggregate, be reasonably expected to result in a Material Adverse Effect on ApexClosing.

Agreements, Contracts and Commitments. Neither Apex nor any Part 3.7 of its subsidiaries is a party to or is bound bythe Tigris Disclosure Schedule identifies: (a) each Tigris 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 Apex's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability other employee benefit plans or financial obligation to Apexarrangements; (b) each Tigris Contract 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 or independent contractor services, not terminable by Tigris or its Subsidiaries on ninety (90) days notice without liability, except to the extent general principles of wrongful termination law may limit Tigris’ or its Subsidiaries’ ability to terminate employees at will; (c) each Tigris 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 Tigris Contract relating to any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale Ordinary Course of Business other than indemnification agreements between Tigris and any of its officers or license of computer or communications hardware products in the ordinary course of businessdirectors; (de) each Tigris Contract relating to any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex Tigris, a Tigris Subsidiary or any of its subsidiaries the Surviving Corporation to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsPerson; (ef) each Tigris Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penalty; (g) each Tigris Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex of material assets or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex and its subsidiaries taken as a wholeEntity; (h) any agreement, contract or commitment currently in force each Tigris Contract relating to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any 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 in excess of $100,000 or creating any Encumbrances with respect to any assets of Tigris or a Tigris Subsidiary or any loans or debt obligations with officers or directors of Tigris or a Tigris Subsidiary; (i) each Tigris Contract relating to (i) any distribution 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 Tigris or a Tigris Subsidiary (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Tigris or a Tigris Subsidiary has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Tigris or a Tigris Subsidiary has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Tigris or a Tigris Subsidiary; or (iv) any Contract currently in force to license any third party to manufacture or produce any product, service or technology of Tigris or a Tigris Subsidiary or any Contract currently in force to sell, distribute or commercialize any products or service of Tigris or a Tigris Subsidiary except agreements with distributors or sales representatives in the Ordinary Course of Business; (j) each Tigris Contract with any settlement agreement entered into within five (5) years prior Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Tigris or a Tigris Subsidiary in connection with the date of this AgreementContemplated Transactions; or (k) any other agreement, contract or commitment that has (i) which involves payment or receipt by Tigris or a value Tigris Subsidiary under any such agreement, contract or commitment of $1,000,000 100,000 or more individuallyin the aggregate or obligations after the date of this Agreement in excess of $100,000 in the aggregate, or (ii) that is material to the business or operations of Tigris and its Subsidiaries. Neither Apex Tigris has delivered or made available to Potomac accurate and complete (except for applicable redactions thereto) copies of all Tigris Material Contracts, including all amendments thereto. There are no Tigris Material Contracts that are not in written form. Except as set forth on Part 3.7 of the Tigris Disclosure Schedule, neither Tigris nor any of its subsidiariesTigris Subsidiary, nor to Apex's knowledge the Knowledge of Tigris, as of the date of this Agreement has any other party to an Apex a Tigris Material Contract (as defined below), is (breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries Tigris is a party or by which it is bound that are required to be disclosed of the type described in the Apex Schedules clauses (a) through (j) above (any such agreement, contract or commitment, a "APEX CONTRACT"“Tigris Material Contract”) in such a manner as would permit any other party to cancel or terminate any such Apex Tigris 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)which would reasonably be expected to have a Tigris Material Adverse Effect. Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each The consummation of the other parties thereto, enforceable in accordance with its terms, except Contemplated Transactions shall not (aeither alone or upon the occurrence of additional acts or events) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in any material payment or payments becoming due from Tigris, a Material Adverse Effect on ApexTigris Subsidiary or the Surviving Corporation to any Person under any Tigris Contract.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries Except as set forth in Schedule 2.14, Zap Santa ▇▇▇▇ is not currently a party to or nor is it currently bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level officer, director, employee or member of Apexthe Zap Santa Cruz's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to ApexZap Santa ▇▇▇▇ at will; (b) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements; (c) any agreement or 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 value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (cd) any lease of personal property having a value individually in excess of $500; (e) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessguaranty; (df) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex or any of its subsidiaries Zap Santa ▇▇▇▇ to engage in any line of business, conduct business in any geographic area 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 Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 agreement relating to capital expenditures and involving future payments in force to provide source code to any third party for any product or technology that is material to Apex and its subsidiaries taken as a wholeexcess of $500; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (i) any purchase order or contract involving $500 or more in total payments; (j) any construction contracts; (k) any dealer, distribution, joint marketing (excluding joint marketing agreements: (i) involving financial obligations or liabilities to the Company; or (ii) that do not involve rights to sell Company Products to end-users), development, content provider, destination site or merchant agreement; (l) any agreement pursuant to which the Company has advanced or loaned any amount to any shareholder of the Company or any director, officer, employee or consultant; (m) any settlement agreement entered into within five (5) years prior to since the date of this AgreementCompany's initial incorporation; or (kn) any other agreement, contract or commitment agreement that has a value of involves $1,000,000 500 in total payment or more individuallyor is not cancelable without penalty within thirty (30) days. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default underZap Santa ▇▇▇▇ has not, and neither Apex nor any of its subsidiaries has not received written notice that it has has, breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party commitment required to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect set forth on ApexSchedule 2.14.

Agreements, Contracts and Commitments. Neither Apex nor any (a) Except as set forth in Section 2.14(a) of its subsidiaries the Disclosure Schedule (specifying the appropriate paragraph), no Acquired Entity is a party to to, or is bound by: (ai) (A) any employment employment, contractor or consulting agreement, contract or commitment Contract with any officer or director or higher level an employee or member of Apex's Board of Directorsindividual consultant, other than those that are terminable by Apex contractor or salesperson, or (B) any Contract to grant any severance or termination pay (in cash or otherwise) to any employee or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexcontractor; (bii) 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 or may 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 fidelity or surety bond or completion bond; (iv) any Lease Agreement; (v) any lease of indemnification or personal property having an individual value in excess of $5,000; (vi) any guaranty other than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products (excluding, for clarity, Acquired Entity Product warranties provided to customers in the ordinary course of business) or standalone agreement of indemnification; (dvii) any agreement, contract Contract relating to capital expenditures and involving future payments in excess of $10,000 individually or commitment containing any covenant limiting $30,000 in any respect the right of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsaggregate; (eviii) any agreement, contract or commitment currently in force Contract relating to the disposition or acquisition by Apex of assets or any of its subsidiaries after the date of this Agreement of a material amount of assets not interest in any business enterprise outside the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesthe Acquired Entities’ businesses; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (iix) any 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 settlement Contract (including purchase orders) that involves performance of services or delivery of goods or materials by or to any Acquired Entity of an amount or value in excess of $10,000 individually or $30,000 in the aggregate; (xi) any joint marketing, joint venture, partnership, strategic alliance, affiliate or development agreement or outsourcing agreement other than consulting agreements substantially in the form of the Consultant Proprietary Information Agreement; (xii) any hedging, swap, derivative, ISDA or similar Contract; (xiii) any dealer, distribution, sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor or other Contract for use or distribution of the products, technology or services of the Acquired Entities involving future payments in excess of $10,000 individually; (xiv) any nondisclosure, confidentiality or similar agreement other than non-material nondisclosure, confidentiality or similar agreements entered into within five (5) years prior in the ordinary course of business and materially similar in substance to the date of this AgreementCompany’s applicable Standard Form Agreement(s); (xv) any Contract containing “most-favored nation” pricing or similar pricing terms; (xvi) any Contract limiting the Company’s ability to engage in any business anywhere in the world, or otherwise providing for or relating to “non-competition”; or (kxvii) any other agreement, contract Contract that involves $10,000 individually or commitment $30,000 in the aggregate or more and is not cancelable without penalty within 30 days. (b) The Company has delivered true and complete copies of each Contract that has been requested by Parent or its counsel, which shall be deemed to include, but shall not be limited to, all Contracts required to be disclosed pursuant to Sections 2.3, 2.11, 2.12, 2.13(a) (including, for the avoidance of doubt, each Contract entered into on a value Standard Form Agreement), 2.13(a) and 2.15 and each of $1,000,000 the other documents listed on the Disclosure Schedule. Each Contract disclosed pursuant to Sections 2.3, 2.11, 2.12, 2.13(a) and 2.13(a), 2.15 (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement) shall be referred to herein as a “Material Contract” and collectively, as the “Material Contracts.” (c) Each Material Contract to which any Acquired Entity is a party or more individually. Neither Apex nor any of its subsidiariesproperties or assets (whether tangible or intangible) is subject is a valid and binding agreement of such Acquired Entity, nor and, to Apex's knowledge any the Knowledge of the Acquired Entities and the Founders, each other party thereto, enforceable against such Acquired Entity, and, to an Apex the Knowledge of the Acquired Entities and the Founders, each other party thereto, in accordance with its terms, and is in full force and effect with respect to such Acquired Entity and, to the Knowledge of the Acquired Entities and the Founders, each other party thereto, subject to (i) laws of general application relating to bankruptcy, insolvency fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Each Acquired Entity that is a party to a Material Contract (as defined below)is in compliance in all material respects with and has not materially breached, is violated or defaulted under, or received written (or with nothing more than notice and/or to the passage Knowledge of time will bethe Acquired Entities and the Founders, oral) in breach, violation or default under, and neither Apex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any such Material Contract. To the Knowledge of the agreements, contracts or commitments to which Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in Acquired Entities and the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by Founders (i) bankruptcyno party is obligated to the applicable Acquired Entity pursuant to any Material Contract that is subject to any material breach, insolvencyviolation or default thereunder, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles there is no presently existing fact or circumstance that, with or without the lapse of equity time, giving of notice, or both would constitute such a material breach, violation or default by such Acquired Entity or any such other party. (regardless d) Each Acquired Entity has performed all material obligations required to have been performed by such Acquired Entity pursuant to each Material Contract to which such Acquired Entity is a party. (e) All outstanding Indebtedness for borrowed money of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, any Acquired Entity may be reasonably expected to result in a Material Adverse Effect on Apexprepaid without penalty.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is not a party to or is bound by: (a) any employment bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay); (b) any employment, severance, change of control or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Apex's Board of Directorsindividual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other than those that are organization provides services to Xcyte, not terminable by Apex or any of its subsidiaries Xcyte on no more than thirty ninety (3090) days' days notice without liability or financial obligation liability, except to Apexthe extent general principles of wrongful termination law may limit Xcyte’s ability to terminate employees at will; (bc) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation right plan, stock purchase plan or stock purchase other equity-based 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 Stock Purchase or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this AgreementStock Purchase; (cd) any agreement of indemnification or any guaranty other than indemnification agreements between Xcyte and any agreement of indemnification entered into in connection with the sale its officers or license of computer or communications hardware products in the ordinary course of businessdirectors; (de) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries Xcyte to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (ef) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty; (g) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesenterprise; (fh) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000; (i) any joint marketing or development agreement; (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any dealer, distributor, joint marketing marketing, alliance, joint venture, shareholder, cooperation, development or development other agreement currently in force under which Apex or any of its subsidiaries have Xcyte 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 lessservice, or any material agreement pursuant to which Apex or any of its subsidiaries have Xcyte has continuing material obligations to jointly develop any intellectual property Intellectual Property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety Xcyte; (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 that is material to Apex and its subsidiaries taken as a whole; (hiii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex Xcyte product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Apex products, Xcyte products or 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 Cybex; Xcyte; or (iiv) any mortgages, indentures, guarantees, loans licenses or credit other agreements, security agreements including amendments to such licenses, for patents, trademarks, trade secrets, domain names or other agreements or instruments relating intellectual property rights, except, in each case, for any agreement with respect to the borrowing of money or extension of creditwhich Xcyte does not have any payment obligations other than immaterial payment obligations; (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 has a value (i) which involve payment or receipt by Xcyte under any such agreement, contract or commitment of $1,000,000 100,000 or more individuallyin the aggregate or (ii) that are material to the business operations of Xcyte; (l) any collective bargaining agreements; (m) any purchase order or contract for the purchase of raw materials involving $250,000 or more; (n) any construction contract; or (o) any fidelity or surety bond or completion bond. Neither Apex nor any of its subsidiariesXcyte has not, nor to Apex's knowledge Xcyte’s Knowledge has any other party to an Apex Xcyte Material Contract (as defined below), is (breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries Xcyte is a party or by which it is bound that are required to be disclosed of the type described in the Apex Schedules clauses (a) through (o) above (any such agreement, contract or commitment, a "APEX CONTRACT"an “Xcyte Material Contract”) in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.Xcyte Material

Agreements, Contracts and Commitments. Neither Apex Except as otherwise set forth ------------------------------------- in Part 2.16 of the Company Disclosure Letter, neither Company nor any 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 ApexCompany's Board of Directors, other than those that are terminable by Apex Company or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Apexthe 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 any agreement instrument evidencing indebtedness for borrowed money by way of indemnification entered into in connection with the direct loan, sale of debt securities, purchase money obligation, conditional sale, or license of computer or communications hardware products in the ordinary course of businessotherwise; (d) any agreement, contract obligation or commitment containing covenants purporting to limit or which effectively limit Company's or any covenant limiting of its subsidiaries' freedom to compete in any respect the right line of Apex business or in any geographic area or which would so limit Company or Surviving Corporation or any of its subsidiaries to engage in or any line employees of business, conduct business in any geographic area or to compete with any person thereof 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 Apex Company or any 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 Apex Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than ApexCompany's subsidiaries; (f) any dealerlicensing, distributordistribution, joint marketing sponsorship, advertising, merchant program or development other similar agreement currently in force under to which Apex Company or any one of its subsidiaries have continuing material obligations to jointly market any product, technology or service and is a party which (i) may not be canceled by Company or its subsidiaries, as the case may be, without penalty upon notice of ninety (90) 30 days or less, and (ii) which provides for payments by or any material agreement pursuant to which Apex Company or any of its subsidiaries have continuing in an amount in excess of $100,000 over the term of the agreement or which is (or could reasonably be expected to become) material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or lessCompany; (g) 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 Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any 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 Agreementtechnology; or (kh) any other agreement, contract or commitment currently in effect that has a value of $1,000,000 or more individuallyis material to Company's business as presently conducted and proposed to be conducted. Neither Apex Company nor any of its subsidiaries, nor to ApexCompany's knowledge any other party to an Apex a Company Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex Company nor any 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 Apex Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules Company Disclosure Letter pursuant to clauses (a) through (h) above or pursuant to Section 2.11 hereof or are required to be filed with any Company SEC Report (any such agreement, contract or commitment, a "APEX CONTRACTCompany Contract") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is The agreements set forth in full force and effect, and is a legal, valid and binding obligation Part 2.16(i) of Apex or a subsidiary of Apex andthe Company Disclosure Letter have, to the knowledge of ApexCompany's knowledge, been executed by each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or party thereto in the aggregate, be reasonably expected form provided to result in a Material Adverse Effect on ApexParent.

Agreements, Contracts and Commitments. Neither Apex Pathlore nor any of its subsidiaries is 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 Apex's Board of Directorsthe Pathlore Board, other than those that are terminable by Apex Pathlore or any of its subsidiaries Subsidiaries on no more than thirty (30) days' ’ notice without liability or financial obligation to ApexPathlore; (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 any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessbusiness that would not reasonably be expected to have a Material Adverse Effect on Pathlore or any guaranty of the obligations of a Subsidiary of Pathlore; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex Pathlore or any of its subsidiaries Subsidiaries to engage in any line of business, conduct business in any geographic area 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 Apex Pathlore or any of its subsidiaries Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Apex Pathlore has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesPathlore’s Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex Pathlore or any of its subsidiaries 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, or any material agreement pursuant to which Apex Pathlore or any of its subsidiaries Subsidiaries have continuing material obligations to jointly develop any intellectual property Intellectual Property that will not be owned, in whole or in part, by Apex Pathlore or any of its subsidiaries 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 that is material to Apex 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 Apex product, service or technology Pathlore Product or any agreement, contract or commitment currently in force to sell or distribute any Apex productsPathlore Product, 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 CybexSumTotal; (ih) any 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 five three (53) 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 that, either individually or taken together with all other contracts with the same party, (i) has a value 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 Apex Pathlore nor any of its subsidiariesSubsidiaries, nor to Apex's knowledge Pathlore’s Knowledge any other party to an Apex Contract (as defined below)a Pathlore Contract, is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex Pathlore nor any of its subsidiaries 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 Apex Pathlore or any of its subsidiaries Subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Pathlore Schedules (any such agreement, contract or commitment, a "APEX CONTRACT"“Pathlore Contract”) in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.

Agreements, Contracts and Commitments. Neither Apex nor any As of its subsidiaries the date of this Agreement, except for Employee Plans (as defined in Section 3.26 hereof), as contemplated by this Agreement or as set forth on the YieldUP Disclosure Schedule, YieldUP does not have and is not a party to the following agreements (or is bound by:group of related agreements), whether written or oral (collectively, the "YieldUP Material Contracts"): (a) any collective bargaining agreement; (b) any agreements that contain any unpaid severance liabilities or obligations; (c) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (d) any employment or consulting agreement, contract contract, or commitment with any officer or director or higher level an employee or member of Apex'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 not terminable by Apex or any of its subsidiaries YieldUP on no more than thirty (30) 30 days' notice without liability or financial obligation except to Apexthe extent of applicable local law and/or general principles of wrongful termination law may limit YieldUP's ability to terminate such employees; (be) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan plan, or stock purchase plan, any of the benefits of which will be increased, or the vesting of vested 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 any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessguaranty; (di) any agreement, contract, or commitment containing any covenant limiting the freedom of YieldUP to engage in any line of business or compete with any person; (j) any agreement, contract, or commitment relating to capital expenditures and involving future obligations in excess of $25,000; (k) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area 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 Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture venture, or other business enterprise other than Apex's subsidiariesenterprise; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (il) any 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 (h) hereof; (jm) any settlement agreement entered into within five purchase order or contract for the purchase of raw materials or acquisition of assets involving $50,000 or more; (5n) years prior to any construction contracts; (o) any distribution, original equipment manufacturing, sales representation, joint marketing, or development agreement; (p) any purchase order for the date sale of this AgreementCompany products (other than for spare parts) involving $50,000 or more (identified by invoice number, dollar amount and scheduled shipment date); or (kq) any other agreement, contract contract, or commitment that has a value of which involves $1,000,000 25,000 or more individuallyand is not cancelable without penalty within thirty (30) days. Neither Apex nor Schedule 3.14(a) of the YieldUP Disclosure Schedule contains a complete and accurate description of any of its subsidiariesthe above that constitute oral agreements or oral modifications, nor to Apex's knowledge amendments or interpretations of oral agreements. Except for such breaches or alleged breaches noted in the YieldUP Disclosure Schedule, YieldUP has not breached, or received any other party to an Apex Contract (as defined below), is (claim or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any of its subsidiaries has received written notice threat 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") YieldUP Material Contract in such a manner as would permit any other party to cancel or terminate any such Apex Contract, the same 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)from YieldUP. Each Apex YieldUP Material Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex effect and, except as otherwise disclosed, is not subject to any default thereunder of which YieldUP is aware by any party obligated to YieldUP pursuant thereto. Except as set forth in the knowledge of ApexYieldUP Disclosure Schedule, each no YieldUP Material Contract of the other parties thereto, enforceable type referred to in accordance with its terms, except (aSection 3.14(o) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles contains any grant of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexexclusive territory.

Agreements, Contracts and Commitments. Neither Apex Except as set forth in the most recent exhibit list on Parent’s Form 10-K for the year ended December 31, 2009 or Section 3.17 of the Parent Disclosure Schedule, neither Parent nor any of its subsidiaries Subsidiaries is a party to or is bound by: (a) any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (b) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Apex's Board of Directorsemployee, other than those that are not terminable by Apex Parent or any of its subsidiaries Subsidiaries on no more than thirty (30) days' days notice without liability liability, except to the extent general principles of wrongful termination may limit Parent’s or financial obligation any of its Subsidiaries’ ability to Apexterminate employees at will; (bc) 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; (cd) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business, including any indemnification agreements between Parent or any of its Subsidiaries and any of its officers or directors; (de) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex Parent or any of its subsidiaries Subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (ef) any license, agreement, contract or commitment relating to any Material Parent IP Right; (g) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $50,000 and not cancelable without penalty; (h) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybexenterprise; (i) any 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 within five (5) years prior to the date of this Agreementidentifying any that contain exclusivity provisions); or (kl) any other agreement, contract or commitment that has a value (excluding real and personal property leases) which involve an annual payment by Parent or any of its Subsidiaries under any such agreement, contract or commitment of $1,000,000 50,000 or more individuallyin the aggregate and is not cancelable without penalty within thirty (30) days. Neither Apex Parent nor any of its subsidiariesSubsidiaries, nor to Apex's Parent’s knowledge any other party to an Apex Contract (as defined below)a Parent Contract, is (has breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries Parent is a party or by which it is bound that are required to be disclosed of the type described in the Apex Schedules clauses (a) through (k) above (any such agreement, contract or commitment, a "APEX CONTRACT"“Parent Contract”) in such a manner as would permit any other party to cancel or terminate any such Apex Parent Contract, or would permit any other party to seek material damages or damages. Parent has made available to Company an accurate and complete copy of each Parent Contract (other remedies (for any or all of than such breaches, violations or defaults, in agreements that can be obtained on the aggregateSEC’s website at ▇▇▇.▇▇▇.▇▇▇). Each Apex Parent Contract is a valid, binding and enforceable obligation of Parent or its Subsidiary and is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof as enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or bankruptcy and other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexequity.

Agreements, Contracts and Commitments. Neither Apex Except as set forth in the -------------------------------------- East Schedules, neither East nor any 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 post-employment liabilities or obligations; (c) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (d) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Apex's Board of Directorsemployee, other than those that are not terminable by Apex East or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation to Apexliability; (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 any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessbusiness other than indemnification agreements between East or any 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 Apex East or any of its subsidiaries to engage in any line of business, conduct business in any geographic area 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 $100,000 and not cancelable without penalty; (i) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise (other than ApexEast's wholly-owned subsidiaries); (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ij) any 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 or distribution agreement (excluding agreements with resellers, value added resellers or independent software vendors entered into within five (5) years prior in the ordinary course of business that do not permit such resellers or vendors to the date modify East's or any of this Agreementits subsidiaries' software products); or (kl) any other agreement, contract or commitment that has a value (excluding real and personal property leases) which require payment by East or 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 Apex East nor any of its subsidiaries, nor to ApexEast's knowledge any other party to an Apex East Contract (as defined below), is (has breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries East is a party or by which it is bound that are required to be disclosed of the type described in the Apex Schedules clauses (a) through (k) above (any such agreement, contract or commitment, a an "APEX CONTRACTEast Contract") in such a manner as would permit any other party ------------- to cancel or terminate any such Apex East 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 aggregate). Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as which would not, individually or in the aggregate, be reasonably expected to result in have a Material Adverse Effect on ApexEast.

Agreements, Contracts and Commitments. Neither Apex nor any Except as set forth in Section 4.12 of its subsidiaries the Purchaser Disclosure Schedule, the Purchaser does not have continuing obligations under, is not a party to or nor is it bound by: (a) any collective bargaining agreements; (b) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, other than as contemplated herein or in the Employment Agreements (as defined below); (c) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements; (d) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Apex'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 Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexorganization; (be) any agreement or 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 value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein; (cf) any fidelity or surety bond; (g) any lease of personal property having annual lease payments individually in excess of $25,000; (h) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business; (di) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Purchaser to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (ej) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any capital expenditures and involving future payments in excess 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries$25,000; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gk) any agreement, contract or commitment currently relating to the disposition or acquisition of material assets or any interest in force to provide source code to any third party for any product or technology that is material to Apex and its subsidiaries taken as a wholebusiness enterprise outside the ordinary course of the Purchaser's business; (hl) any purchase order or contract for the purchase of raw materials involving $25,000 or more; (m) any construction contracts; (n) any agreement, contract or commitment currently in force to license any third party to manufacture commitment, including distribution or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, service or technology except agreements with distributors agency or sales representative in agreements, with any party which, during the normal course last two fiscal years of business cancelable without penalty upon notice the Purchaser, accounted for, or is expected to account during the Purchaser's current fiscal year, for more than 5% of ninety (90) days the Purchaser's revenue or less and substantially in the form previously provided to Cybextrade payables; (io) any 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 (jviii) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreementhereof. The Purchaser has not breached, contract violated or commitment that has a value of $1,000,000 or more individually. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment set forth in Schedule 4.12 of the agreementsPurchaser Disclosure Schedule, contracts or commitments (ii) any other material agreement, contract or commitment to which Apex or any of its subsidiaries it is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effecteffect and, except as otherwise disclosed in Schedule 4.12 of the Purchaser Disclosure Schedule, is not subject to any default thereunder of which the Purchaser is aware by any party obligated to the Purchaser pursuant thereto, other than late payments, nonpayment. The Purchaser has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the transactions contemplated by this Agreement, other than any consent required by Section 4.24, or as are required or advisable in order to remain in effect without modification after the transactions contemplated by this Agreement. Each Contract requiring any consent, waiver or third-party approval as a result of the transaction contemplated by this Agreement is a legaldisclosed in Schedule 4.24 of the Purchaser Disclosure Schedule. Neither the execution of this Agreement nor consummation of the transactions contemplated hereby will cause any default or breach under any Contract, valid and binding including without limitation any key man clause in any Contract, or the acceleration of any payment obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on ApexPurchaser.

Agreements, Contracts and Commitments. Neither Apex nor any (a) Except as set forth in Section 2.14(a) of its subsidiaries the Disclosure Schedule (specifying the appropriate paragraph, provided, that the failure to properly identify the correct paragraph or each paragraph that may be applicable, alone, shall not affect the accuracy or correctness of this representation or warranty), the Company is not a party to or to, nor is it bound by: (ai) (A) any employment employment, contractor or consulting agreement, contract Contract or commitment with an Employee or salesperson, (B) any officer agreement, Contract or director commitment to grant any severance or higher level employee termination pay (in cash or member of Apex's Board of Directorsotherwise) to any Employee, or (C) any consulting or sales agreement, contract, or commitment with a firm or other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexorganization; (bii) 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 or may 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 fidelity or surety bond or completion bond; (iv) any lease of personal property requiring future payments in excess of $5,000 annually or $50,000 in the aggregate; (v) any Lease Agreements; (vi) any agreement of indemnification or any guaranty other than any agreement of performance, except for indemnities that do not materially differ in substance from the indemnification entered into in connection with the sale or license of computer or communications hardware products provisions that are typical and in the ordinary course of businessbusiness of companies in the same industry as the Company; (dvii) any Contract relating to capital expenditures and requiring future payments in excess of $25,000 in the aggregate; (viii) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area 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 Apex of assets or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesenterprise; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (iix) any 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 settlement agreement purchase order or contract for the purchase of materials involving payments in excess of $15,000 individually or $50,000 in the aggregate; (xi) any construction contracts; (xii) any hedging, swap, derivative, International Swaps and Derivatives Association or similar Contract; (xiii) any dealer, distribution, joint marketing, strategic alliance, affiliate or development agreement; (xiv) any agreement, contract or commitment to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest; (xv) any joint venture or joint development arrangement; (xvi) any Contract pursuant to which the Company or any of its subsidiaries is bound to or has committed to provide any product or service to any third party on a most favored nation (MFN) basis or similar terms; (xvii) any nondisclosure, confidentiality or similar agreement, other than nondisclosure agreements entered into within five in the ordinary course of business or non-disclosure or confidentiality provisions contained in Contracts otherwise disclosed in Section 2.14(a) of the Disclosure Schedule; (5xviii) years prior to any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the date products, technology or services of this Agreementthe Company; or (kxix) any other agreement, contract or commitment that has a value of involves $1,000,000 15,000 individually or $50,000 in the aggregate or more individually. Neither Apex nor and is not cancelable without penalty within thirty (30) days. (b) The Company has delivered or made available to Parent true and complete copies of each Contract required to be disclosed pursuant to Section 2.2, Sections 2.13(c), 2.13(g), 2.13(h) (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement), 2.13(j), 2.13(o), Section 2.14 and the Lease Agreements (each a “Material Contract” and collectively, the “Material Contracts”) and each of the other documents listed on the Disclosure Schedule. (c) Each Material Contract to which the Company is a party or any of its subsidiariesproperties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company, nor and, to Apex's knowledge any the Knowledge of the Company, each other party thereto, enforceable against the Company, and, to an Apex Contract the Knowledge of the Company, each other party thereto, in accordance with its terms, and is in full force and effect with respect to the Company and, to the Knowledge of the Company, each other party thereto, subject to (i) Laws of general application relating to bankruptcy, insolvency fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally, and (ii) general principles of equity. Except as defined below)set forth in Section 2.14(c) of the Disclosure Schedule, the Company is (in compliance in all material respects with and has not materially breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its subsidiaries has or received written notice that it has materially breached, violated or defaulted under, any of the material terms or conditions of any Material Contract, nor to the Knowledge of the agreementsCompany is any party obligated to the Company pursuant to any Material Contract subject to any material breach, contracts violation or commitments to which Apex default thereunder, nor does the Company have Knowledge of any presently existing facts or circumstances that, with the lapse of time, giving of notice, or both would constitute such a material breach, violation or default by the Company or any such other party. As of its subsidiaries is a party or by which it is bound the date hereof, other than in connection herewith, there are no new Contracts being actively negotiated that are would be required to be disclosed listed in Section 2.14(a). (d) The Company has fulfilled all material obligations required to have been performed by the Apex Schedules Company pursuant to each Material Contract. (any such agreement, contract or commitment, a "APEX CONTRACT"e) Except as set forth in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each Section 2.14(e) of the other parties theretoDisclosure Schedule, enforceable in accordance with its terms, except (a) that all outstanding Indebtedness of the enforcement thereof Company may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexprepaid without penalty.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries Except as set forth on SCHEDULE 2.12(a), 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) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements; (iv) any employment or consulting agreement, agreement or contract or commitment with any officer or director or higher level an employee or member individual consultant or salesperson or consulting agreement or contract, under which a firm or other organization provides services to the Company pursuant to which the Company is obligated to make payments in excess of Apex's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apex$30,000 per year; (bv) any agreement or 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 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 fidelity or surety bond or completion bond; (vii) any lease of personal property having a value individually in excess of $30,000; (viii) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessguaranty; (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (ex) any agreement, contract or commitment currently in force relating to the disposition capital expenditures and involving future payments in excess of $25,000 individually or acquisition by Apex or any of its subsidiaries after the date of this Agreement of a material amount of assets not $40,000 in the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesaggregate; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gxi) 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 that is material to Apex and its subsidiaries taken as a wholebusiness enterprise outside the ordinary course of the Company's business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixii) any 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 (viii) hereof; (jxiii) any settlement agreement entered into within five purchase order or contract for the purchase of raw materials involving $35,000 or more; (5xiv) years prior any construction contract; (xv) any material distribution, joint marketing or development agreement; (xvi) any agreement, contract or commitment pursuant to which the date of this AgreementCompany has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code; or (kxvii) any other agreement, contract or commitment that has a value of involves $1,000,000 35,000 or more individuallyor is not cancelable without penalty within thirty (30) days. Neither Apex nor any SCHEDULE 2.12(a) sets forth a list of its subsidiariesthe Company's top 15 customers according to revenue for the fiscal year ended December 31, nor 1998, and each customer with which the Company currently has an agreement that the Company in good faith expects to Apexbe one of the Company's knowledge any other party to an Apex Contract (as defined below)top 15 customers for the fiscal year ending December 31, is (or with nothing more than notice and/or 1999, and a list of all effective agreements between such customer and the passage of time will be) in Company. Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in SCHEDULE 2.12(b), the Company has not breached, violated or defaulted under, and neither Apex nor any of its 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 to which Apex or any of its subsidiaries is a party or by which it is bound that are commitment required to be disclosed in the Apex Schedules set forth on SCHEDULE 2.12(a) or SCHEDULE 2.11(b) (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effecteffect and, except as otherwise disclosed in SCHEDULE 2.12(b), is not subject to any material default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. SCHEDULE 2.12(c) lists all contracts, licenses and agreements between the Company and any other person wherein the Company has agreed to, or assumed, any material obligation or material duty to warrant, indemnify, reimburse, hold harmless, guaranty or otherwise assume or incur any material obligation or liability or provide a right of rescission with respect to the infringement or misappropriation by the Company or such other person of the intellectual property of any person or entity other than the Company. To the extent that the products currently offered by the Company record, store, process, calculate or present calendar dates falling on and after (and if applicable, spans of time including) January 1, 2000, they do so accurately and calculate any information dependent on or relating to such dates in the same manner, and is a legalwith the same functionality, valid data integrity and binding obligation of Apex performance, as the products record, store, process, calculate and present calendar dates on or a subsidiary of Apex andbefore December 31, 1999, or calculate any information dependent on or relating to the knowledge of Apexsuch dates (collectively, each "YEAR 2000 COMPLIANT"). All of the other parties thereto, enforceable in accordance with its terms, except (a) that products currently offered by the enforcement thereof may be limited by Company (i) bankruptcywill lose no functionality with respect to the introduction of records containing dates falling on or after January 1, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally 2000. All of the Company's internal computer and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) technology products and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexsystems are Year 2000 Compliant.

Agreements, Contracts and Commitments. Neither Apex (a) Except as set forth in Section 3.15(a) of the Disclosure Schedule (specifying the appropriate clause to which such Contract relates), neither the Company nor any of its subsidiaries ERISA Affiliates is a party to to, or is bound by: (ai) (A) any employment current Employee Agreement, or consulting agreement; (B) any Employee Agreement, contract Contract or commitment to grant any bonus, change in control, severance or other termination-related payment (in cash or equity or otherwise) to any Employee; (C) any Employee Agreement which cannot be terminated without cause or without notice and without liability or notice at the discretion of the Company or any ERISA Affiliate, as applicable, or (D) any contractor, consulting or sales agreement, Contract, or commitment with any officer a firm or director or higher level employee or member of Apex's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexorganization; (bii) any agreement agreement, policy, past practice or plan, including, without limitation, including any stock option plan, stock appreciation right rights plan or stock purchase plan, or any of the plan providing similar equity awards, for which any benefits of which will be provided or increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (or any events following this Agreement, contingent or otherwise), or for which the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as required by the terms of this Agreement; (ciii) any agreement of indemnification fidelity or any guaranty other than any agreement of indemnification entered into in connection with the sale surety bond or license of computer or communications hardware products in the ordinary course of businesscompletion bond; (div) any agreementlease of, contract or commitment containing any covenant limiting purchase Contract for, personal property having a value in any respect excess of $10,000 individually or $25,000 in the right of Apex aggregate, or any of its subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsLease Agreements; (ev) any agreementContract of indemnification, contract hold harmless agreement or commitment currently guaranty; (vi) any Contract relating to capital expenditures and involving future payments in force excess of $10,000 individually or $25,000 in the aggregate; (vii) any Contract relating to the disposition or acquisition by Apex of assets or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture Person or other business enterprise other than Apex's subsidiariesenterprise; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (iviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements Contracts or instruments relating to the borrowing of money Indebtedness or extension of credit; (jix) any Contract with any Customer (other than customer agreements or nondisclosure agreements in all material respects identical (in substance) to the Standard Form Agreements) or Supplier (other than nondisclosure agreements in all material respects identical (in substance) to the Standard Form Agreements); (x) any Contract relating to Indebtedness of the Company or any of its Subsidiaries; (xi) any joint marketing or affiliate agreement; (xii) any sales representative, original equipment manufacturer, value added, remarketer, reseller, distribution, or independent software vendor, or other Contract for sale or distribution of any Company Product or Company Intellectual Property; (xiii) any nondisclosure, confidentiality or similar agreement, other than nondisclosure agreements on the Standard Form Agreements or confidentiality provisions contained in the Standard Form Agreements for the provision of any Company Product to end users; (xiv) any other Contract that involves payments from or to the Company or any of its Subsidiaries of $10,000 individually or $25,000 in the aggregate or more and is not cancelable without penalty within thirty (30) days; (xv) any Contract currently in effect with any former officer, director, member or shareholder (or group of members or shareholders) of the Company; (xvi) any power of attorney relating to the Company or any of its Subsidiaries that is currently effective and outstanding; (xvii) any settlement agreement entered into within five or severance Contract with any present or former Employee, group of present or former Employees, or Governmental Authority; (5xviii) years prior to any Contract with any Governmental Authority; (xix) any Contract providing for the date development of this Agreementany Technology or Intellectual Property Rights, independently or jointly, by or for the Company or any of its Subsidiaries; (xx) any hedging, futures, options or other derivative Contract; or (kxxi) any other agreement, contract or commitment that has a value of $1,000,000 or more individually. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or A) limiting the passage of time will be) in breach, violation or default under, and neither Apex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any freedom of the material terms or conditions of any of the agreements, contracts or commitments to which Apex Company or any of its subsidiaries Subsidiaries to engage or participate, or compete with any other Person, in any line of business, market or geographic area, or to make use of any Company Intellectual Property, (B) pursuant to which the Company or any of its Subsidiaries grants most favored nation pricing or other similar rights or terms to any Person, (C) pursuant to which the Company or any of its Subsidiaries grants exclusive sales, distribution, marketing, license or other exclusive rights, rights of refusal, rights of first negotiation or similar rights or terms to any Person or (D) otherwise limiting the right of the Company or any of its Subsidiaries to (1) sell, distribute or manufacture any products or services, (2) purchase or otherwise obtain any services or any Software or other Technology or (3) grant reseller rights to third parties (b) The Company has made available true, correct and complete copies of all Contracts required to be disclosed pursuant to Section 3.12, Section 3.13(c), Section 3.14, and this Section 3.15 (each such Contract, together with all Standard Form Agreements, Inbound Licenses and Outbound Licenses, a “Specified Contract” and collectively, the “Specified Contracts”). (c) Each Specified Contract to which the Company or any of its Subsidiaries is a party or by which it is bound that any its properties or assets (whether tangible or intangible) are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and subject is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each agreement of the other parties theretoCompany or such Subsidiary, enforceable against the Company or such Subsidiary, as applicable, in accordance with its terms, except (a) that and is in full force and effect with respect to the enforcement thereof may be limited by Company or such Subsidiary, as applicable and, to the Knowledge of the Company, any other party thereto subject to (i) Laws of general application relating to bankruptcy, insolvencyinsolvency and the relief of debtors, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles rules of equity (regardless Law governing specific performance, injunctive relief and other equitable remedies. Neither the Company nor any of whether enforceability its Subsidiaries has violated and or is considered in violation of, in any material respect, any provision of, or has committed or failed to perform any act which, with or without notice, lapse of time or both would constitute a proceeding material breach of, a default or an event of default under, the provisions of, any Specified Contract. To the Knowledge of the Company, no Person other than the Company or any of its Subsidiaries which is party to any Specified Contract has violated or is in equity violation of, in any material respect, any provision of, or at law) and (b) as has committed or failed to perform any act which, with or without notice, lapse of time or both, would notconstitute a material breach of, individually a default or in an event of default under the aggregate, provisions of any Specified Contract. There are no facts or circumstances that would reasonably be reasonably expected to result in a Material Adverse Effect violation in any material respect, of any provision of, or the failure to perform any act which, with or without notice, lapse of time or both, would constitute a material breach of, a default or an event of default under the provisions of any Specified Contract by the Company, any of its Subsidiaries or any other Person. No Specified Contract requires the obtaining of any consent, approval, notation or waiver of any third party in connection with the transactions contemplated by this Agreement, and following the Closing the Company or one of its Subsidiaries, as applicable, shall be entitled to all rights under each Specified Contract existing immediately prior to the Closing without the payment of any additional amounts or consideration (other than ongoing fees, royalties or payments that the Company or such Subsidiary would otherwise be required to pay in accordance with the terms of such Specified Contracts had the Merger not occurred). None of the Specified Contracts are subject to any claims, charges, set offs or defenses. None of the Company or any of its Subsidiaries or any of their officers, directors, or employees, by or on Apexbehalf of the Company or such Subsidiary, is party to or has ever been a party to a Government Contract.

Agreements, Contracts and Commitments. Neither Apex nor any Except as set forth in Section 3.12 of its subsidiaries the Company Disclosure Schedule, the Company does not have continuing obligations under, is not a party to or nor is it bound by: (a) any collective bargaining agreements; (b) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, other than as contemplated herein or in the Employment Agreements (as defined below); (c) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements; (d) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Apex'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 Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexorganization; (be) any agreement or 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 value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as provided herein; (cf) any fidelity or surety bond; (g) any lease of personal property having annual lease payments individually in excess of $25,000; (h) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business; (di) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (ej) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any capital expenditures and involving future payments in excess 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries$25,000; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gk) any agreement, contract or commitment currently relating to the disposition or acquisition of material assets or any interest in force to provide source code to any third party for any product or technology that is material to Apex and its subsidiaries taken as a wholebusiness enterprise outside the ordinary course of the Company's business; (hl) any purchase order or contract for the purchase of raw materials involving $25,000 or more; (m) any construction contracts; (n) any agreement, contract or commitment currently in force to license any third party to manufacture commitment, including distribution or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, service or technology except agreements with distributors agency or sales representative in agreements, with any party which, during the normal course last two fiscal years of business cancelable without penalty upon notice the Company, accounted for, or is expected to account during the Company's current fiscal year, for more than 5% of ninety (90) days the Company's revenue or less and substantially in the form previously provided to Cybextrade payables; (io) any agreement for the granting of any distribution right by the Company to any other party; or (p) any 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 (jviii) 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 has a value hereof in an individual amount in excess of $1,000,000 25,000. The Company has not breached, violated or more individually. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment set forth in Schedule 3.12 of the agreementsCompany Disclosure Schedule, contracts or commitments (ii) any other material agreement, contract or commitment to which Apex or any of its subsidiaries it is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effecteffect and, except as otherwise disclosed in Schedule 3.12 of the Company Disclosure Schedule, is not subject to any default thereunder of which the Company is aware by any party obligated to the Company pursuant thereto, other than late payments, nonpayment. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the transactions contemplated by this Agreement, other than any consent required by Section 3.24, or as are required or advisable in order to remain in effect without modification after the transactions contemplated by this Agreement. Each Contract requiring any consent, waiver or third-party approval as a result of the transaction contemplated by this Agreement is a legaldisclosed in Schedule 3.12 of the Company Disclosure Schedule. Neither the execution of this Agreement nor consummation of the transactions contemplated hereby will cause any default or breach under any Contract, valid and binding including without limitation any key man clause in any Contract, or the acceleration of any payment obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on ApexCompany.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries (a) except as set forth on Schedule 2.13(a), 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) 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 agreement with any officer or director or higher level an employee or member of Apex's Board of Directors, individual consultant or salesperson or consulting or sales agreement with a firm or other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apex;organization, (bv) any agreement or 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 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 fidelity or surety bond or completion bond, (vii) any lease of personal property having a value individually in excess of $20,000, (viii) any agreement of indemnification or any guaranty other than those substantially the same as the agreements of indemnification or guarantees attached hereto as Schedule 2.13(a), (ix) any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rights;person, (ex) any agreement, contract or commitment currently agreement relating to capital expenditures and involving future payments in force excess of $50,000, (xi) any agreement relating to the disposition or acquisition by Apex of assets or any of its subsidiaries after the date of this Agreement of a material amount of assets not interest in any business enterprise outside the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apexthe Company's subsidiaries;business, (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixii) any 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 (viii) hereof, (jxiii) any settlement agreement entered into within five (5) years prior to purchase order or contract for the date purchase of this Agreement; orraw materials involving $20,000 or more, (kxiv) any other construction contracts, (xv) any distribution, joint marketing or development agreement, contract or commitment that has a value of $1,000,000 or more individually. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.,

Agreements, Contracts and Commitments. Neither Apex Company nor any 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 ApexCompany's Board of Directors, other than those that are terminable by Apex Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to ApexCompany; (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 any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessbusiness of Company; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Apex Company or any of its subsidiaries to engage in any line of businessbusiness (other than with respect to limitations on the distribution by Company of certain content and service providers), conduct business in any geographic area 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 Apex Company or any 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 Apex Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than ApexCompany's subsidiaries; (fi) any dealer, distributor, joint marketing or development agreement currently in force under which Apex Company or any 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, or (ii) any material agreement pursuant to which Apex Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or lessless 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 that is material to Apex 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 Apex Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex Company products, 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 CybexParent; (i) any 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 has a value involves annual expenditures or receipts of $1,000,000 2,500,000 or more individually. Neither Apex Company nor any of its subsidiaries, nor to ApexCompany's knowledge any other party to an Apex a Company Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex Company nor any 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 Apex Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules Company Schedule (any such agreement, contract or commitment, a "APEX CONTRACTCompany Contract") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries Except as set forth on ------------------------------------- Schedule 2.13(a), 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) 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 agreement with any officer or director or higher level an employee or member of Apex's Board of Directors, individual consultant or salesperson or consulting or sales agreement with a firm or other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apex;organization, (bv) any agreement or 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 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 fidelity or surety bond or completion bond, (vii) any lease of personal property having a value individually in excess of $100,000, (viii) any agreement of indemnification or any guaranty other than those substantially the same as the agreements of indemnification or guarantees attached hereto as Schedule 2.13, (ix) any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rights;person, (ex) any agreement, contract or commitment currently agreement relating to capital expenditures and involving future payments in force excess of $100,000, (xi) any agreement relating to the disposition or acquisition by Apex of assets or any of its subsidiaries after the date of this Agreement of a material amount of assets not interest in any business enterprise outside the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apexthe Company's subsidiaries;business, (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixii) any 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 (viii) hereof, (jxiii) any settlement purchase order or contract for the purchase of raw materials involving $100,000 or more, (xiv) any construction contracts, (xv) any distribution, joint marketing or development agreement, (xvi) any agreement entered into within five (5) years prior pursuant to which the date of this Agreement; Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code, or (kxvii) any other agreement, contract or commitment agreement that has a value of involves $1,000,000 100,000 or more individuallyor is not cancelable without penalty within thirty (30) days. Neither Apex nor any of its subsidiariesExcept for such alleged breaches, nor to Apex's knowledge any other party to an Apex Contract (as defined below)violations and defaults, is (or with nothing more than notice and/or the passage of time will be) in and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.13(b), the Company has not breached, violated or defaulted under, and neither Apex nor any of its 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 to which Apex or any of its subsidiaries is a party or by which it is bound that are commitment required to be disclosed in the Apex Schedules set forth on Schedule 2.13(a) or Schedule 2.12 (any such agreement, contract or commitment, a "APEX CONTRACTContract") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract -------- is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex effect and, except as otherwise disclosed in Schedule 2.13(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the knowledge of Apex, each of the other parties Company pursuant thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.

Agreements, Contracts and Commitments. Neither Apex Except as set forth in Section 2.17 of the Disclosure Schedule (specifying the appropriate paragraph), neither the Company nor any of its subsidiaries Subsidiaries is a party to to, or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Apex's Board of Directors, individual consultant or salesperson (other than those that are terminable by Apex "at will" employment agreements entered into in the ordinary course of business), any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any of its subsidiaries on no more than thirty (30) days' notice without liability consulting or financial obligation to Apex;sales agreement, contract, or commitment with a firm or other organization; EXECUTION VERSION (bii) any agreement or 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 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 fidelity or surety bond or completion bond; (iv) any lease of personal property; (v) any lease of real property; (vi) except as provided in Section 2.17(a)(vii) below, any agreement of indemnification or guaranty; (vii) any agreement of indemnification under any End User Agreement that (A) does not eliminate the Company's or any guaranty other than any agreement its Subsidiaries' potential liability for consequential or incidental damages or (B) place a cap on the potential liability of indemnification entered into in connection with the sale Company or license of computer or communications hardware products in the ordinary course of businessits Subsidiaries under such agreement; (dviii) any agreement, contract or commitment containing any covenant limiting relating to capital expenditures and involving future payments in any respect excess of $10,000 individually or $10,000 in the right of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsaggregate; (eix) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex of assets or any of its subsidiaries after the date of this Agreement of a material amount of assets not interest in any business enterprise outside the ordinary course of business the Company's or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesits Subsidiaries' business; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (jxi) any settlement agreement entered into within five (5) years prior to purchase order or contract for the date purchase of this Agreement; ormaterials involving in excess of $10,000 individually; (kxii) any construction contracts; (xiii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement or similar agreement; (xiv) any agreement, contract or commitment to alter the Company's interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest; (xv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company or its Subsidiaries; or EXECUTION VERSION (xvi) other than customer purchase orders, any other agreement, contract or commitment that has a value of involves $1,000,000 10,000 individually or $10,000 in the aggregate or more individuallywith respect to any Person and is not cancelable without penalty within 30 days. (b) Except as set forth in Section 2.17(b) of the Disclosure Schedule, there are no end-user customers that account for greater than five percent (5%) of the Company's net sales. Neither Apex nor Section 2.17(b) of the Disclosure Schedule contains a list of the Company's 10 largest resellers for each of the audited fiscal year ended December 31, 2003 and the 12 months ended December 31, 2004 and sets forth opposite the name of each such reseller the percentage of net sales attributable to such reseller. During the last 12 months, the Company has not received any written notices or threats of termination from any of such resellers that any such reseller intends or otherwise anticipates a termination or material reduction in the level of business with the Company. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.17 (each a "Material Contract" and collectively, the "Material Contracts") have been delivered to Parent. Each Material Contract to which the Company is a party or any of its subsidiariesproperties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company enforceable against each of the parties thereto in accordance with its terms, nor and is in full force and effect with respect to Apex's knowledge any other party to an Apex Contract (the Company. Each of the Company and its Subsidiaries, as defined below)applicable, is (in compliance with and has not breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of such Material Contract. No party obligated to the agreements, contracts or commitments Company pursuant to which Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreementMaterial Contract has breached, contract violated or commitment, a "APEX CONTRACT") in defaulted under such a manner as would permit any other party to cancel or terminate any such Apex Material Contract, or taken any action or failed to act, such that, with the lapse of time, giving of notice or both, such action or failure to act would permit constitute such a breach, violation or default under such Material Contract by any such other party to seek material damages or other remedies party. (for any or all of such breaches, violations or defaults, in the aggregate). Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each c) All outstanding indebtedness of the other parties thereto, enforceable in accordance with Company or its terms, except (a) that the enforcement thereof Subsidiaries may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexprepaid without penalty.

Agreements, Contracts and Commitments. Neither Apex nor any (a) Except as set forth on Section 2.15 of its subsidiaries the Disclosure Schedule (specifying the appropriate paragraph), the Company is not a party to to, or is bound by: (ai) any employment (A) employment, contractor or consulting agreement; (B) Contract or commitment with an Employee, Consultant or contractor; or (C) any agreement, contract or commitment with to grant any officer severance or director termination pay (in cash or higher level employee or member of Apex's Board of Directors, other than those that are terminable by Apex or otherwise) to any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to ApexEmployee; (bii) any agreement or plan, including, without limitation, including any stock unit option plan, stock unit appreciation right rights plan or stock unit 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 (either alone or in connection with additional or subsequent events) 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 fidelity or surety bond or completion bond; (iv) any collective bargaining, union or works council agreements; (v) any lease of personal property having a value in excess of $25,000 individually or $50,000 in the aggregate; (vi) any agreement of that imposes surety, guaranty or indemnification or any guaranty obligations on the Company (other than any agreement indemnities contained in non-exclusive licenses of indemnification Company Products and Services to customers that have been entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessbusiness consistent with past practice pursuant to the Company Form Agreements); (dvii) Inbound License Agreement (excluding Standard Contracts); (viii) Outbound License Agreement (excluding Company Form Agreements); (ix) any agreement, contract Contract, lease or commitment containing any covenant limiting relating to capital expenditures and involving future payments in any respect excess of $25,000 individually or $50,000 in the right of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsaggregate; (ex) any agreement, contract Contract or commitment currently in force relating to the disposition or acquisition by Apex of assets or any of its subsidiaries after the date of this Agreement of a material amount of assets not interest in any business enterprise outside the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesconsistent with past practice; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (jxii) any settlement agreement entered into within five purchase order or contract for the purchase of materials involving in excess of $25,000 individually or $50,000 in the aggregate; (5xiii) years prior any construction contracts; (xiv) any joint marketing, joint venture, partnership, strategic alliance, affiliate or development agreement; (xv) any agreement, Contract or commitment to alter the Company’s interest in any Person in which the Company directly or indirectly holds any interest; (xvi) any agreement, Contract or commitment pursuant to which the Company has undertaken to, or pursuant to which the receipt of revenue is contingent upon, the delivery of products or service offerings not in commercial existence as of the date of this Agreement, and specifically not contingent upon the release of any new product or new version of an existing product; (xvii) any agreement, Contract, arrangement or understanding between the Company and a customer or partner of the Company pursuant to which paid fees must be refunded, payment of fees is contingent upon or an agreement may be terminated in the event a specified return on investment or similar success measure for use of the products or service offerings offered by the Company is not achieved; (xviii) any agreement, Contract, arrangement or understanding between the Company and a customer or partner of the Company that includes a “most favored customer” or similar clause; (xix) any agreement, Contract, arrangement or understanding between the Company and a customer or partner of the Company for which application revenue, under GAAP, may not be recognized on a pro rata basis over the term of the agreement or for which any application revenue must be deferred or put on hold pending a future event; (xx) any dealer, distribution, sales representative, original equipment manufacturer, value added, remarketer, reseller, independent software vendor or other agreement for distribution of the products, Technology or services of the Company; or (kxxi) any other agreement, contract Contract, lease or commitment commitment, including any service, operating or management agreement or arrangement with respect to any Leased Real Property, that has involves $25,000 individually or $50,000 in the aggregate or more. (b) Each Contract to which the Company is a value of $1,000,000 party or more individually. Neither Apex nor any of its subsidiariesproperties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company enforceable, nor to Apex's knowledge any the Knowledge of the Company, against each of the other party parties thereto in accordance with its terms, and is in full force and effect with respect to an Apex Contract (the Company and, to the Knowledge of the Company, the other parties thereto, except as defined below)such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights generally and by general principles of equity. The Company is (in material compliance with, and has not materially breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor or received notice or has any of its subsidiaries reason to believe that a customer or other third party may assert that the Company has received written notice that it has materially breached, violated or defaulted under, any of the material terms or conditions of any such Contract, nor, to the Knowledge of the agreementsCompany, contracts is any party obligated to the Company pursuant to any such Contract subject to any breach, violation or commitments default thereunder, nor, to which Apex the Knowledge of the Company, has event occurred that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company or any such other party. True, correct and complete copies of its subsidiaries is a party each Contract disclosed in the Disclosure Schedule or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party pursuant to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.this

Agreements, Contracts and Commitments. Neither Apex nor (a) Except as set forth in Section 2.14(a) of the Company Disclosure Schedule, the Company does not have any of its subsidiaries continuing obligations under, is not a party to or is not bound by: (ai) any collective bargaining agreements, or any contract with or commitment to any trade unions, employee bargaining agent or affiliated bargaining agent (collectively, "labor representatives") and the Company has not --------------------- conducted any negotiations with respect to any such future contracts or commitments, (ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations or is otherwise required by statute or case law to provide any of the foregoing, (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 Apex'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 Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apex;organization, (bv) any agreement or plan, including, without limitation, any stock option plan, stock share appreciation right rights plan or stock share 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;, except as provided herein, (cvi) any fidelity or surety bond or completion bond, (vii) any lease of personal property having annual lease payments individually in excess of $ 2,000, (viii) any agreement of indemnification or any guaranty guaranty, other than any agreement of intellectual property indemnification entered into in connection with the sale or license of computer or communications hardware products to customers in the ordinary course of business;, (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rights;person, (ex) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any capital expenditures and involving future payments in excess 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries;$2,000, (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gxi) any agreement, contract or commitment currently relating to the disposition or acquisition of material assets or any interest in force to provide source code to any third party for any product or technology that is material to Apex and its subsidiaries taken as a whole;business enterprise outside the ordinary course of the Company's business, (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixii) any 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 (viii) hereof, (jxiii) any settlement agreement entered into within five purchase order or contract for the purchase of raw materials, other than purchase orders made in the ordinary course of business and involving not more than $2,000 (xiv) any construction contracts, (xv) any distribution, joint marketing or development agreement, (xvi) any agreement, contract or commitment with any customer which accounted for, or is expected to account during the Company's current fiscal year, for more than 5) years prior to % of the date of this Agreement; Company's revenue, or (kxvii) any other agreement, contract or commitment that has a value of involves $1,000,000 2,000 or more individually. Neither Apex nor any or is not cancelable without penalty within thirty (30) days. (b) Except as noted in Section 2.14(b) of its subsidiariesthe Company Disclosure Schedule, nor to Apex's knowledge any other party to an Apex Contract (as defined below)the Company has not breached, is (violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment required to be set forth in Section 2.14(a) of the agreementsCompany Disclosure Schedule, contracts or commitments (ii) any other material agreement, contract or commitment to which Apex or any of its subsidiaries it is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitmentcommitment referenced in the preceding clauses (i) and (ii), a "APEX CONTRACTContract") in ), nor is either Shareholder or the -------- Company aware of any event that would constitute such a manner as would permit any other party to cancel breach, violation or terminate any such Apex Contractdefault with the lapse of time, giving of notice 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)both. Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex effect and, except as otherwise disclosed in Section 2.14(b) of the Company Disclosure Schedule, is not subject to any default thereunder, of which Shareholder or the Company is aware, by any party obligated to the knowledge Company pursuant thereto. The Company has obtained, or will obtain prior to the Exchange Date, all necessary consents, waivers and approvals of Apex, each of parties to any Contract as are required thereunder in connection with the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium Share Exchange or other similar laws now or hereafter to remain in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in without modification after the aggregate, be reasonably expected to result in a Material Adverse Effect on ApexShare Exchange.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries (A) Except as specifically disclosed in Schedule 2.12, Vista Vacations does not have, is not a party to or nor is it bound by: (a1) Any collective bargaining agreements; (2) Any agreements that contain any unpaid severance liabilities or obligations; (3) Any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (4) Any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Apex'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, not terminable by Apex or any of its subsidiaries Vista Vacations on no more than thirty (30) days' days notice without liability or financial obligation liability, except to Apexthe extent general principles of wrongful termination law may limit Vista Vacations' ability to terminate employees at will; (b5) 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; (c6) any Any fidelity or surety bond or completion bond; (7) Any lease of personal property having a value individually in excess of $2,000; (8) Any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business; (d9) any Any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries Vista Vacations to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (e10) any Any agreement, contract or commitment currently relating to capital expenditures and involving future obligations in force excess of $2,000 in any single instance or $10,000 in the aggregate; (11) Any agreement, contract or commitment relating to the disposition or acquisition by Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesenterprise; (f12) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any Any 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 Schedule 2.12(A)(12) hereof; (j13) Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $1,000 or more in any settlement agreement entered into within five (5) years prior to single instance or $10,000 or more in the date of this Agreement; oraggregate; (k14) any Any construction contracts; (15) Any distribution, joint marketing or development agreement; (16) Any other agreement, contract or commitment that has a value of which involves $1,000,000 1,000 or more individually. Neither Apex nor in any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (single instance or with nothing more than notice and/or $10,000 in the passage aggregate and is not cancelable without penalty within thirty (30) days other than standard end-user licenses of time will beVista Vacations' products and services in the ordinary course of business consistent with past practice, or (17) in breachAny agreement which is otherwise material to Vista Vacations' business. (B) (1) Vista Vacations has not breached, violation or default under, and neither Apex nor received any of its subsidiaries has received written notice claim or threat 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed (including those set forth in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT"of Vista Vacations Schedules) in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexsame.

Agreements, Contracts and Commitments. Neither Apex (a) Except as set forth on Schedule 2.23(a), neither the Company nor any of its subsidiaries has, is a party to to, or is bound by: (ai) any employment fidelity or consulting agreement, contract surety bond or commitment with any officer or director or higher level employee or member of Apex's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexcompletion bond; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any lease of the benefits personal property having a value individually in excess 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$25,000; (ciii) any agreement of indemnification or any guaranty guaranty, other than any agreement such indemnification obligations in the software license agreements of indemnification the Company and its subsidiaries entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessbusiness consistent with past practices and which indemnification obligations are capped at an amount not to exceed the revenues generated under such agreements; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting person, including without limitation, any exclusive license agreements or distribution rightsagreements; (ev) any agreement, contract or commitment currently in force relating to the disposition capital expenditures and involving future payments in excess of $10,000 individually or acquisition by Apex or any of its subsidiaries after the date of this Agreement of a material amount of assets not $25,000 in the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesaggregate; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 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 that is material to Apex and its subsidiaries taken as a wholebusiness enterprise outside the ordinary course of business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ivii) any 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 (iii) hereof; (jviii) any settlement agreement entered into within five purchase order or contract for the purchase of raw materials involving $25,000 or more; (5ix) years prior any construction contract; (x) any distribution, joint marketing or development agreement; (xi) any agreement, contract or commitment pursuant to which the date Company or any of this Agreementits subsidiaries has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code; or (kxii) any other agreement, contract or commitment that has a value of involves $1,000,000 25,000 or more individually. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), or is (or with nothing not cancelable without penalty on no more than notice and/or thirty (30) days notice. (b) Schedule 2.23(b) sets forth a list of the passage of time will beCompany's top 15 customers according to revenue for the fiscal year ended June 30, 2003. Schedule 2.23(b) in lists all effective agreements between such customers and the Company. (c) Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default underwith the lapse of time, and giving of notice, or both, all of which are noted in Schedule 2.23(c), neither Apex the Company nor any of its subsidiaries has materially breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any contract required to be set forth on Schedule 2.23(a), Schedule 2.23(b) or Schedule 2.12. Each such contract is in full force and effect and, except as otherwise disclosed in Schedule 2.23(c), is not subject to any default thereunder of which the agreements, contracts or commitments Company has Knowledge by any party obligated to which Apex the Company or any of its subsidiaries is a party pursuant thereto. (d) Schedule 2.23(d) sets forth all rights of return provided by the Company to any customer or by which it is bound that are required to be disclosed in the Apex Schedules (distributor, and describes any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex Contract, or would permit any other party to seek material damages or other remedies (for any or all exercise of such breaches, violations or defaults, in rights during the aggregate). Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexpast 12 months.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries is a party to or is bound by: (a) any employment or consulting agreementSection 2.13(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 Apex's Board of Directorsa “Company Material Contract” and collectively, the “Company Material Contracts”): (i) a Company Contract, other than those that are a Company Employee Plan, requiring payments by the Company after the date of this Agreement in excess of $125,000 per year 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 or independent contractor services, not terminable by Apex the Company on 90 calendar days’ or any of its subsidiaries on no more than thirty (30) days' less notice without liability liability, except to the extent general principles of wrongful termination law may limit the Company’s ability to terminate employees at will; (ii) a Company Contract, other than the Company Employee Plans or financial obligation the Company Stock Plan, relating to Apex; (b) 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 Agreement; Contemplated Transactions; 20 Exhibit 2.1 (ciii) a Company Contract relating to any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license Ordinary Course of computer or communications hardware products in the ordinary course of business; Business; (div) any agreement, contract or commitment a Company Contract containing (A) any covenant limiting in any respect the right freedom of Apex the Company or any of its subsidiaries the Surviving Corporation to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rights; Person, (eB) any agreementmost-favored pricing arrangement, contract (C) any exclusivity provision, or commitment currently (D) any non-solicitation provision with respect to employees; (v) a Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in force excess of $250,000 pursuant to its express terms and not cancelable without penalty; (vi) a Company Contract relating to the disposition or acquisition by Apex of material assets or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; Entity since the Company’s incorporation; (fvii) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any of its subsidiaries have continuing material obligations a Company Contract relating to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any mortgages, indentures, guaranteesloans, loans notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; credit in excess of $250,000 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; (jviii) any settlement agreement entered into within five (5) years prior a Company Contract requiring payment by or to the Company after the date of this AgreementAgreement in excess of $250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); or (kB) 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 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; (ix) a 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; (x) a Company Real Estate Lease; or (xi) 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 has a value of more than $250,000 in the aggregate, or obligations after the date of this Agreement in excess of $1,000,000 250,000 in the aggregate, or more individually(B) that is material to the business or operations of the Company. Neither Apex nor any 21 Exhibit 2.1 (b) The Company has made available to Apricus accurate and complete copies of its subsidiariesall Company Material Contracts, nor including all amendments thereto. Except as set forth in Section 2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. The Company has not, and to Apex's knowledge any the Company’s Knowledge, as of the date of this Agreement no other party to an Apex a Company Material Contract (as defined below)has, is (breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") Company Material Contract in such a manner as would permit any other party to cancel or terminate any such Apex Company Material Contract, or would permit any other party to seek material damages or other remedies (for any or all which would reasonably be expected to have a Company Material Adverse Effect. As to the Company, as of such breachesthe date of this Agreement, violations or defaults, in the aggregate). Each Apex each Company Material Contract is valid, binding, enforceable and in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, subject to the knowledge Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of Apexany Company Material Contract to change, each any material amount paid or payable to the Company under any Company Material Contract or any other material term or provision of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a any Company Material Adverse Effect on ApexContract.

Agreements, Contracts and Commitments. Neither Apex nor any (a) Except for Contracts specifically identified in Section 3.11(a) of its subsidiaries the Disclosure Schedule (referring to the appropriate sub-section of this Section), no member of the Company Group is a party to or to, nor is it bound by:by any of the following (each, a “Material Contract”): (ai) management, employment, severance, consulting, relocation, repatriation, expatriation, or any employment other Contract providing for compensation or consulting agreementbenefits to current employees (each, contract or commitment an “Employment Agreement”), and Contracts with any officer or director or higher level employee or individual service providers, in each case which are not cancelable by the member of Apex's Board the Company Group party to such Contracts on notice of Directors, other than those 60 days or less without penalty or further payment or which include payments of a base salary that are terminable by Apex or any is in excess of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apex$150,000 per annum; (bii) Company Employee Plan; (iii) Contract pursuant to which 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 thereunder will be increased, or the vesting thereunder of such benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Agreement, or the value of any of the which benefits of which thereunder will be calculated on the basis of any of the transactions contemplated by this Agreement; (civ) any agreement lease or sublease of personal or real property having a value in excess of $200,000 individually or $350,000 in the aggregate, per annum; (v) Contract of indemnification or any guaranty guaranty, other than any agreement Contract of indemnification entered into in connection with the sale or license or manufacturing of computer products or communications hardware products in the ordinary course of business; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area 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 Apex or any of its subsidiaries after the date of this Agreement of a material amount of assets not services in the ordinary course of business or pursuant to which Apex has indemnification of any material ownership interest in officers and directors of any corporationCompany Member, partnership, joint venture or other business enterprise other than Apex's subsidiariesconsistent with past practice; (fvi) Contract relating to capital expenditures (within the meaning of GAAP) and involving future payments in connection with such expenditures to or from any dealer, distributor, joint marketing member of the Company Group in excess of $250,000 individually or development agreement currently $500,000 in force under which Apex or any the aggregate; (vii) Contract that has a term of its subsidiaries have continuing material obligations to jointly market any product, technology or service more than one year and which that may not be canceled terminated by the Company Group without penalty upon notice within 60 days after the delivery of ninety (90) days a termination notice, except for confidentiality or less, or nondisclosure agreement entered into by any material agreement pursuant to which Apex or any member of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, the Company Group in whole or in part, by Apex or any the ordinary course of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or lessbusiness consistent with past practice; (gviii) 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 Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments Contract relating to the borrowing of money or extension of credit, in excess of $100,000 individually or in the aggregate, and other than trade payables incurred and extensions of credit to customers granted in the ordinary course of business consistent with past practice; (jix) research and/or development Contracts under which any member of the Company Group has continuing obligations to jointly research and/or develop any material Intellectual Property; (x) Contract for a joint venture, partnership or similar arrangement; (xi) Material Company IP Agreement; (xii) any settlement agreement entered into within five (5) years prior Contract required to the date of this Agreement; orbe referred to under Section 3.7 hereof; (kxiii) Contract with any shareholder or affiliate of any member of the Company Group, other agreementthan an Employment Agreement; (xiv) stockholder agreements, contract voting agreements, buy-sell agreements and other Contracts granting any Person any rights to exercise control over any member of the Company Group, or commitment that has a value the capital stock of $1,000,000 or more individually. Neither Apex nor any member of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default underCompany Group, and neither Apex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any all such Contracts to which although no member of the material terms or conditions of any of the agreements, contracts or commitments to which Apex or any of its subsidiaries Company Group is a party or otherwise bound, the existence of which is the Company has Knowledge of; (xv) Contract granting a Lien upon any material asset of any member of the Company Group; (xvi) Contracts with each of the customers, distributors or resellers that were the five largest costumers, distributors or resellers of the Company Group in 2005 in terms of the amount of revenues in each of the Company Group’s product lines (each, a “Material Customer”); (xvii) Contracts with each of the suppliers that were either the five largest suppliers of the Company Group in 2005 in terms of the total value of goods and services purchased by which it is bound the Company Group, or that are sole suppliers for material goods and services required to be disclosed for the conduct of the business in each of the Company Group’s product lines (each, a “Material Supplier”). (xviii) Contract for the (i) disposition or acquisition of any material asset (other than licenses in the Apex Schedules ordinary course of business consistent with past practice), (ii) for the grant of any such agreementpreferential rights to purchase any material asset, contract (iii) for the grant of any exclusive right to use any material asset, or commitment, a "APEX CONTRACT"(iv) in such a manner as would permit requiring the consent of any other party to cancel the transfer of any material asset; (xix) Material Contract with any Governmental Authority; and (xx) Material currency exchange, interest rate exchange, commodity exchange or terminate any such Apex similar Contract. (b) All Material Contracts are valid, 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 Apex Contract is binding and in full force and effecteffect and to the Company’s Knowledge, and is a legal, valid and binding obligation are enforceable against the applicable member of Apex or a subsidiary of Apex the Company Group party to such Material Contracts and, to the knowledge of Apexthe Company, each of the other parties party thereto, enforceable in accordance with its their terms. Each member of the Company Group has performed and is in compliance with all material obligations required to be performed by it or complied with to date under the Material Contracts, except (aas disclosed in Section 3.8(b) that of the enforcement thereof may be limited by Disclosure Schedule. Other than as listed in Section 3.11(b) of the Disclosure Schedule, to the Company’s Knowledge, there exists no default or event of default or event, occurrence, condition or act, which, with the giving of notice, the lapse of time or the happening of any other event or condition, would (i) bankruptcybecome a default or event of default under any Material Contract or (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, insolvency(B) the right to a rebate, reorganizationchargeback, moratorium refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of any obligation of the Company or any of its Subsidiaries under any Material Contract, or (D) the right to cancel, terminate or modify any Material Contract, which has resulted in the last 12 months, or is reasonably likely to result, in a material impact on any of the Company Group’s product lines. To the Company’s Knowledge, no member of the Company Group has received any written notice regarding any material violation or material breach of, material default under, or intention to cancel or modify any Material Contract, which has resulted in the last 12 months, or is reasonably likely to result, in a material impact on any of the Company Group’s product lines. Following the Closing, the Company will be permitted to exercise all of its rights under the Material Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay pursuant to the terms of such Material Contracts had the transactions contemplated by this Agreement not occurred. Complete and correct copies of all Material Contracts have been made available to the Investors by the Company. (c) Section 3.11(c) of the Disclosure Schedule sets forth all Material Contracts with change-in-control or other similar laws now provisions which would, or hereafter in effect relating would reasonably be expected to, void such Contract or to creditors' cause the termination thereof, a breach, violation or default thereunder or any other change, acceleration, triggering of rights generally and (ii) general principles or modification to the terms thereof, as a result of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apextransactions contemplated by this Agreement.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries (a) Except as disclosed pursuant to Section 2.12 hereof or expressly contemplated hereby, Company is not a party to or nor is it bound by: (ai) any material employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Apex'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 Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexorganization; (bii) any agreement or 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 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 fidelity or any guaranty other than any agreement of indemnification entered into in connection with the sale surety bond or license of computer or communications hardware products in the ordinary course of businesscompletion bond; (div) any lease of personal property having a value in excess of $25,000 individually or $50,000 in the aggregate; THE SYMBOL "[***]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. (v) any agreement, contract or commitment containing any covenant limiting relating to capital expenditures and involving future payments in any respect excess of $25,000 individually or $50,000 in the right of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsaggregate; (evi) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex Company of assets or any of its subsidiaries after the date of this Agreement of a material amount of assets not interest in Company or any other business enterprise outside the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than ApexCompany's subsidiariesbusiness; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ivii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $25,000 individually or $50,000 in the aggregate; (jviii) any settlement no-shop agreement entered or other agreements restricting Company from engaging in negotiations or entering into within five an agreement for any merger or acquisition of Company or a material part of Company's assets; (5ix) years prior any purchase order or contract for the purchase of materials involving in excess of $25,000 individually or $50,000 in the aggregate; (x) any construction contracts for which future payments by Company exceed $25,000 individually or $50,000 in the aggregate; (xi) any dealer, distribution, joint marketing or development agreement; (xii) any sales representative, original equipment manufacturer, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of Company's products, technology or services; (xiii) any contract, agreement or commitment containing material obligations of Company to the date of this Agreementindemnify or hold harmless any Person; or (kxiv) any other agreement, contract or commitment that has a value involves future payments by Company in excess of $1,000,000 or more individually. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, 25,000 and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except not cancelable without penalty within thirty (a30) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and days. (b) as would notTrue, individually or correct and complete copies of each agreement listed in Section 2.13(a) of the aggregate, be reasonably expected Company Disclosure Schedule have been made available to result in a Material Adverse Effect on ApexParent.

Agreements, Contracts and Commitments. Neither Apex nor (a) Except as set forth in Section 2.14(a) of the Disclosure Letter, Skillscape does not have any of its subsidiaries continuing obligations under, is not a party to or is not bound by: (ai) any collective bargaining agreements, or any contract with or commitment to any trade unions, employee bargaining agent or affiliated bargaining agent (collectively, "LABOR representatives") and Skillscape has not conducted any negotiations with respect to any such future contracts or commitments; (ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations or is otherwise required by statute or case law to provide any of the foregoing; (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 Apex'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 Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexorganization; (bv) any agreement or plan, including, without limitation, any stock share option plan, stock share appreciation right rights plan or stock share 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, except as provided herein; (cvi) any fidelity or surety bond or completion bond; (vii) any lease or license of real or personal property having annual lease payments individually in excess of US$3,000; (viii) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessguaranty; (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex Skillscape or any of its subsidiaries affiliates to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (ex) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any capital expenditures and involving future payments in excess 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesUS$5,000; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gxi) any agreement, contract or commitment currently relating to the disposition or acquisition of material assets or any interest in force to provide source code to any third party for any product or technology that is material to Apex and its subsidiaries taken as a wholebusiness enterprise outside the ordinary course of Skillscape's business; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixii) any 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 (viii) hereof; (jxiii) any settlement agreement entered into within five purchase order or contract for the purchase of raw materials, other than purchase orders made in the ordinary course of business and involving not more than US$5,000; (xiv) any construction contracts; (xv) any distribution, joint marketing or development agreement; (xvi) any agreement, contract or commitment with any customer which accounted for, or is expected to account during Skillscape's current fiscal year, for more than 5) years prior to the date % of this AgreementSkillscape's revenue or trade payables; or (kxvii) any other agreement, contract or commitment that has a value of involves $1,000,000 5,000 or more individually. Neither Apex nor any or that cannot be canceled without penalty within thirty (30) days. (b) Except as noted in Section 2.14(b) of its subsidiariesthe Disclosure Letter, nor to Apex's knowledge any other party to an Apex Contract (as defined below)Skillscape is in compliance with and has not breached, is (violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment required to be set forth in Section 2.14(a) of the agreementsDisclosure Letter, contracts or commitments (ii) any other agreement, contract or commitment to which Apex or any of its subsidiaries it is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitmentcommitment referenced in the preceding clauses (i) and (ii), a "APEX CONTRACT") in ), nor is either Shareholder aware of any event that would constitute such a manner as would permit any other party to cancel breach, violation or terminate any such Apex Contractdefault with the lapse of time, giving of notice 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)both. Each Apex Contract is in full force and effecteffect and, and except as otherwise disclosed in Section 2.14(b) of the Disclosure Letter, is not subject to any default thereunder of which Management Shareholders are aware by any party obligated to Skillscape pursuant thereto. Each of the Contracts (i) constitutes a legal, valid and binding obligation of Apex or a subsidiary of Apex and, Skillscape in accordance with its terms and (ii) to the knowledge of Apexeach of the Management Shareholders, constitutes a legal, valid and binding obligation of each of the other parties thereto, enforceable against such other parties thereto in accordance with its terms. There has been no cancellation, except (a) that termination, limitation or modification or any notice of cancellation, termination, limitation or modification of any such Contract and, to the enforcement thereof may knowledge of any of the Management Shareholders, there is no event which could reasonably be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexcancellation, termination, limitation or modification of any such Contract. Skillscape has obtained, or will obtain prior to the Exchange Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with consummation of the Share Exchange or to remain in effect without modification after the Share Exchange.

Agreements, Contracts and Commitments. Neither Apex Except as filed as an exhibit to the ▇▇▇▇▇▇▇ SEC Documents, neither ▇▇▇▇▇▇▇ nor any of its subsidiaries Subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any executive officer or director or higher level employee or member of Apex's Board of Directorsdirector, other than those that are terminable by Apex ▇▇▇▇▇▇▇ or any of its subsidiaries Subsidiaries on no more than thirty (30) days' ’ notice without liability or financial obligation to Apex▇▇▇▇▇▇▇; (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 any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business, that would not reasonably be expected to have a Material Adverse Effect on ▇▇▇▇▇▇▇, or any guaranty of the obligations of a Subsidiary of ▇▇▇▇▇▇▇; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex ▇▇▇▇▇▇▇ or any of its subsidiaries Subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightswhich limits Quinton’s access to certain segments of a specified market; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex ▇▇▇▇▇▇▇ or any of its subsidiaries Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Apex ▇▇▇▇▇▇▇ has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesQuinton’s Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex ▇▇▇▇▇▇▇ or any of its subsidiaries 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 one hundred twenty (90120) days or less, or any material agreement pursuant to which Apex ▇▇▇▇▇▇▇ or any of its subsidiaries Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex ▇▇▇▇▇▇▇ or any of its subsidiaries Subsidiaries and which may not be canceled without penalty upon notice of ninety one hundred twenty (90120) 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 that is material to Apex ▇▇▇▇▇▇▇ and its subsidiaries Subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex ▇▇▇▇▇▇▇ product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex ▇▇▇▇▇▇▇ products, 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 CybexCardiac; (i) any 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 debt incurred in the ordinary course of business); (j) any settlement agreement entered into within five three (53) years prior to the date of this AgreementAgreement with respect to which ▇▇▇▇▇▇▇ has contingent obligations of a material nature; or (k) any other agreement, contract or commitment that has a value that, either individually or taken together with all other contracts with the same party, will, if fulfilled in accordance with its terms, result in payments being made by ▇▇▇▇▇▇▇ in excess of $1,000,000 or more individuallyin the calendar year ending December 31, 2005. Neither Apex ▇▇▇▇▇▇▇ nor any of its subsidiariesSubsidiaries, nor to Apex's knowledge Quinton’s Knowledge any other party to an Apex a ▇▇▇▇▇▇▇ Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex ▇▇▇▇▇▇▇ nor any of its subsidiaries 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 Apex ▇▇▇▇▇▇▇ or any of its subsidiaries Subsidiaries is a party or by which it is bound that are either filed as an exhibit to any ▇▇▇▇▇▇▇ SEC Document or required to be disclosed in the Apex Schedules ▇▇▇▇▇▇▇ Disclosure Letter (any such agreement, contract or commitment, a "APEX CONTRACT"“▇▇▇▇▇▇▇ Contract”) in such a manner as would permit any other party to cancel or terminate any such Apex ▇▇▇▇▇▇▇ 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.

Agreements, Contracts and Commitments. Neither Apex Except as filed as an exhibit to the Cardiac SEC Documents, neither Cardiac nor any of its subsidiaries Subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any executive officer or director or higher level employee or member of Apex's Board of Directorsdirector, other than those that are terminable by Apex Cardiac or any of its subsidiaries Subsidiaries on no more than thirty (30) days' ’ notice without liability or financial obligation to ApexCardiac; (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 any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business, that would not reasonably be expected to have a Cardiac Material Adverse Effect, or any guaranty of the obligations of a Subsidiary of Cardiac; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex Cardiac or any of its subsidiaries Subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightswhich limits Cardiac’s access to certain segments of a specified market; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex Cardiac or any of its subsidiaries Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Apex Cardiac has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesCardiac’s Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex Cardiac or any of its subsidiaries 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 one hundred twenty (90120) days or less, or any material agreement pursuant to which Apex Cardiac or any of its subsidiaries Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex Cardiac or any of its subsidiaries Subsidiaries and which may not be canceled without penalty upon notice of ninety one hundred twenty (90120) 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 that is material to Apex Cardiac and its subsidiaries Subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex Cardiac product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex Cardiac products, 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 Cybex▇▇▇▇▇▇▇; (i) any 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 debt incurred in the ordinary course of business); (j) any settlement agreement entered into within five three (53) years prior to the date of this AgreementAgreement with respect to which Cardiac has contingent obligations of a material nature; or (k) any other agreement, contract or commitment that has a value that, either individually or taken together with all other contracts with the same party, will, if fulfilled in accordance with its terms, result in payments being made by Cardiac in excess of $1,000,000 or more individuallyin the calendar year ending December 31, 2005. Neither Apex Cardiac nor any of its subsidiariesSubsidiaries, nor to Apex's knowledge Cardiac’s Knowledge any other party to an Apex a Cardiac Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex Cardiac nor any of its subsidiaries 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 Apex Cardiac or any of its subsidiaries Subsidiaries is a party or by which it is bound that are either filed as an exhibit to any Cardiac SEC Document or required to be disclosed in the Apex Schedules Cardiac Disclosure Letter (any such agreement, contract or commitment, a "APEX CONTRACT"“Cardiac Contract”) in such a manner as would permit any other party to cancel or terminate any such Apex Cardiac 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.

Agreements, Contracts and Commitments. Neither Apex Except as set forth in the Company Schedules or in the schedule of Exhibits to the SEC Reports, neither the Company nor any of its subsidiaries has, nor is it a party to or nor is it bound by: : (a) any collective bargaining agreements; (b) any employment or consulting agreement, contract or commitment (including royalty agreements with any officer or director or higher level employee or member of Apex's Board of Directors, other than those that are employees) not terminable by Apex or any of its subsidiaries the Company on no more than thirty (30) days' days notice without liability liability, except to the extent general principles of wrongful termination or financial obligation other employment law may limit the Company's ability to Apex; terminate employees at will; (bc) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan 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; ; (cd) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business; business with any party in excess of, or which could result in a payment of, $50,000 individually or in the aggregate, and any agreement or guarantee between the Company and of its officers or directors, irrespective of the amount of such agreement or guarantee; (de) any Any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete complete with any person person, or granting sell any exclusive distribution rights; product, or following the consummation of the Acquisition would so limit Purchaser or the Company; (ef) any agreement, contract or commitment currently relating to capital expenditures and involving future obligations in force excess of $100,000; (g) any agreement, contract or commitment relating to the disposition or acquisition by Apex or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business (within the last 3 years) or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex and its subsidiaries taken as a whole; enterprise; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; credit (other than extensions of credit in the ordinary course of business from vendors in an amount not exceeding $50,000); (i) any joint marketing or development agreement (including any agreements with independent contractors); (j) any settlement agreement entered into within five (5) years prior to distribution, sales representative, reseller, or value-added reseller agreement, including in such Company Schedules an indication of those distributors, sales representatives, resellers or value-added resellers who have not met the date of this Agreementquotas established in accordance with those agreements or whose agreements are otherwise currently terminable; or (k) any other agreement, contract or commitment that has a value (excluding real and personal property leases) which involves payment by the Company of $1,000,000 50,000 or more individually. Neither Apex nor in any of twelve (12) month period or $100,000 in the aggregate and is not cancelable without penalty within thirty (30) days; (l) any escrow agreements involving Company Intellectual Property Rights (including source code escrow agreement); (m) any agreements to register its subsidiariessecurities, nor to Apex's knowledge or (n) any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any 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. In addition, the Company Schedules set forth a description of all material proposed agreements, contracts and commitments to which Apex the Company or any of its subsidiaries is a currently negotiating with any third party or by which it is bound that are and which, if entered into, would be required to be disclosed included in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on ApexCompany Schedules.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries is a party to or is bound by: (a) Except as set forth in Section 4.15(a) of the Disclosure Letter (specifying the appropriate subparagraph), the Company is not a party to, nor is it bound by any of the following (each, a “Material Contract”): (i) any employment agreement other than any agreement or consulting offer letter that is terminable at- will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration; (ii) any agreements with the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-month period ended on December 31, 2023; (iii) any agreements with the currently active top 20 suppliers of the Company, whether of products, services, royalty payments, Intellectual Property Rights or otherwise, by dollar volume of purchases by the Company for the 12-month period ended December 31, 2023; (iv) any agreement, contract or commitment with to grant any officer severance or director termination pay or higher level employee benefits (in cash or member otherwise, but excluding statutory notice payments and payments required by applicable Law) to any Employee of Apex's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexthe Company; (bv) any agreement or plan, including, without limitation, with any stock option plan, stock appreciation right plan or stock purchase plan, Employee under which the Company has any ongoing liability which provides for the increase of the benefits of which will be increasedbenefits, or the accelerated vesting of benefits of which will be acceleratedbenefits, by upon the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the value occurrence of any of the additional subsequent events) or which provides for benefits of with a value which will be calculated on the basis of any of the transactions contemplated by this AgreementAgreement (other than as required by local Law); (cvi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”); (vii) any fidelity or surety bond or completion bond; (viii) any lease of personal property or equipment having a value in excess of $50,000in the aggregate; (ix) any agreement of indemnification or any guaranty other than any agreement guaranty, but excluding agreements of indemnification or guaranty that are contained in the Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business; (dx) any agreement, contract or commitment containing any covenant limiting relating to capital expenditures and involving future payments in any respect excess of $50,000 in the right of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsaggregate; (exi) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex of assets or any of its subsidiaries after the date of this Agreement of a material amount of assets not interest in any business enterprise outside the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesthe Company’s business; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (jxiii) any settlement agreement set forth in Section 4.11; (xiv) any agreement providing a customer with refund rights; (xv) any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or other right in or to any material Company Intellectual Property, or (b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, but excluding (i) non-disclosure agreements entered into within five in the ordinary course of business; (5ii) years prior non-exclusive inbound licenses for uncustomized software that is generally commercially available to the date public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of this Agreementbusiness, for the purpose of providing products or services to the Company; (iv) Company’s contracts, licenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, confidentiality and assignment agreements with employees, consultants or contractors; or (kxvi) any other agreementLease Agreement. (b) The Company is in material compliance with and has not materially breached, contract violated or commitment that has a value of $1,000,000 or more individually. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its subsidiaries has or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any Material Contract, nor does the Company have Knowledge of the agreements, contracts or commitments to which Apex or any of its subsidiaries is a party or by which it is bound event that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in would constitute such a manner as would permit any other party to cancel breach, violation or terminate any such Apex Contractdefault with the lapse of time, giving of notice 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)both. Each Apex Material Contract is in full force and effect, and the Company is a legalnot subject to any default thereunder, valid and binding obligation of Apex or a subsidiary of Apex and, nor to the knowledge of Apex, each Knowledge of the other parties theretoCompany is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder. Except as set forth in Section 4.15(b) of the Disclosure Letter, enforceable in accordance with its termsno Material Contract will terminate, except (a) that the enforcement thereof or may be limited terminated by (i) bankruptcyeither party, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles solely by the passage of equity (regardless of whether enforceability is considered in a proceeding in equity time or at law) and (b) as would notthe election of either party within 120 days after the Closing. To the Knowledge of the Company, individually or in the aggregate, be reasonably expected no party to result in a Material Adverse Effect on ApexContract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise.

Agreements, Contracts and Commitments. Neither Apex nor any Schedule 2.9 of its subsidiaries is a party the Company Disclosure Letter identifies, except for the Company Contracts set forth in Schedule 2.13 of the Company Disclosure Letter and except for this Agreement and other agreements, contracts or commitments relating to or is bound bythe Contemplated Transactions: (a) each Company Contract relating to any employment deferred compensation, pension, profit-sharing or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Apex's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexretirement plans; (b) each Company 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 the Company on ninety (90) days notice without liability; (c) each Company 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 Company Contract relating to any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale Ordinary Course of Business other than indemnification agreements between the Company and any of its respective officers or license of computer or communications hardware products in the ordinary course of businessdirectors; (de) each Company Contract limiting the freedom of the Company to engage or participate, or compete with any other Person, in any line of business, market or geographic area, or to make use of any Intellectual Property to the extent that such Intellectual Property (i) is used in, necessary to, or would be infringed by the conduct of the Company Business and (ii) would be necessary to or would be infringed by the commercial manufacture, use, sale, or import of any of the Company’s Clinical Products, as contemplated by the Company to be conducted following the Company’s or its licensee’s obtaining regulatory approval (if any) for such commercial manufacture, use, sale or import, or any Contract granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any Person; (f) each Company Contract relating to any agreement, contract or commitment containing any covenant limiting relating to capital expenditures and involving obligations after the date of this Agreement in any respect the right excess of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rights$100,000 and not cancelable without penalty; (eg) each Company Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex of material assets or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex and its subsidiaries taken as a wholeEntity; (h) any agreement, contract or commitment currently in force each Company Contract relating to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any 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 in excess of $100,000 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; (i) each Company Contract relating to product supply, manufacturing, distribution or development, or the license of Intellectual Property used in the Company Business, to or from the Company (except for (i) standard biological material transfer agreements, (ii) standard licenses purchased by the Company for generally available commercial software, and (iii) Contracts in which the aggregate payments either to or by the Company are not in excess of $100,000); (j) each Company Contract with any settlement agreement entered into within five (5) years prior Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the date of this AgreementCompany in connection with the Contemplated Transactions; or (k) any other agreement, contract or commitment that has a value (i) which involves payment or receipt by the Company under any such agreement, contract or commitment of $1,000,000 100,000 or more individuallyin the aggregate or obligations after the date of this Agreement in excess of $100,000 in the aggregate, or (ii) that is material to the business or operations of the Company. Neither Apex nor any The Company has made available to the Acquiror accurate and complete (except for applicable redactions thereto) copies of its subsidiariesall material written Company Contracts, including all amendments thereto. Except as set forth on Schedule 2.9.1 of the Company Disclosure Letter, there are no material Company Contracts that are not in written form. Except as set forth on Schedule 2.9.2 of the Company Disclosure Letter, the Company has not, nor to Apex's knowledge the Company’s Knowledge, as of the date of this Agreement has any other party to an Apex a Company Material Contract (as defined below), is breached, violated or defaulted under (or and no event has occurred which with nothing more than notice and/or the passage of time will be) or the giving of notice would result in such breach, violation or default under), and neither Apex nor any of its 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 Apex or any of its subsidiaries the Company is a party or by which it is bound that are required to be disclosed of the type described in the Apex Schedules clauses (a) through (o) above (any such agreement, contract or commitment, a "APEX CONTRACT"“Company Material Contract”) in such a manner as would permit any other party to cancel or terminate any such Apex Company Material Contract, or would permit any other party to seek material damages which would, individually or other remedies (for any or all of such breaches, violations or defaults, in the aggregate), reasonably be expected to have a Company Material Adverse Effect. Each Apex As to the Company, as of the date of this Agreement, each Company Material Contract is valid, binding on, and enforceable against, the Acquiror, and to the Acquiror’s Knowledge, each other party thereto, and is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by subject to: (i) laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally insolvency and the relief of debtors; and (ii) general principles rules of equity law governing specific performance, injunctive relief and other equitable remedies. Except as set forth in Schedule 2.9.3 of the Company Disclosure Letter, the consummation of the Contemplated Transactions will not (regardless either alone or upon the occurrence of whether enforceability is considered in a proceeding in equity additional acts or at lawevents) and (b) as would not, individually or in the aggregate, be reasonably expected to result in any material payment or payments becoming due from the Company (including as the Surviving Corporation) or the Acquiror to any Person under any Company Contract or give any Person the right to terminate or alter the provisions of any Company Contract. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Adverse Effect on ApexContract to renegotiate, 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. Schedule 2.9.4 of the Company Disclosure Letter identifies and provides a brief description of each proposed Contract as to which any written bid, offer, award, proposal, term sheet or similar written document has been submitted or received by the Company (other than term sheets and proposals provided by the Company or to the Company by any party related to the subject matter of this transaction or an Acquisition Proposal made prior to the date hereof) that if entered into by the Company would be a Company Material Contract.

Agreements, Contracts and Commitments. Neither Apex (a) Except for this Agreement, the Related Agreements and the Contracts specifically identified on Section 3.11(d) of the Disclosure Schedule (with each of such Contracts specifically identified under subsection(s) of such Section 3.12 of the Disclosure Schedule that correspond to the Subsection or Subsections of this Section 3.12 of the Disclosure Schedule), as of the Agreement Date none of the Company nor any of its subsidiaries Subsidiaries is a party to to, bound by or is bound byuses the benefits of any of the following Contracts: (ai) (A) any employment type of employment, contractor or consulting Contract used by the Company or any ERISA Affiliate or Subsidiary of the Company with respect to any current Employee (other than any Personnel Agreements), (B) any Contract to grant any severance, change of control payments, retention bonus, or termination pay (in cash or otherwise) to any Employee, (C) any other form of Employee Agreement with a current Employee (other than any Personnel Agreements or any individual agreements pursuant to the forms of employment, contractor or consulting agreements provided under Section 3.12(a)(i)(A)), (D) each employment agreement or offer letter that is not immediately terminable at-will by the Company without advance notice, severance, or other cost or liability, (E) any form bonus or commission plan, or any bonus agreements or commission agreements with any Employee, and the schedule of bonus or commission commitments made to Employees, or (F) any separation agreement, contract or commitment settlement agreement with any officer Employee or director other Person, as well as any settlement agreement, consent decree, or higher level employee other similar agreement with any Governmental Entity, (1) pursuant to which claims for harassment or member of Apex's Board of Directors, other than those that are terminable by Apex discrimination were specifically released; or (2) under which the Company or any of its subsidiaries on no more than thirty (30) days' notice without liability Subsidiaries has any current actual or financial obligation to Apexpotential Liability; (bii) any agreement Contract 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 shall be increased, or the vesting of benefits of which will shall be accelerated or may be accelerated, by solely based on the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will shall be calculated solely on the basis of any of the transactions contemplated by this Agreement; (ciii) any agreement lease of indemnification any real property or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businesspersonal property; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of Apex or any of its subsidiaries Contract relating to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightscapital expenditures and involving future payments ; (ev) any agreement, contract or commitment currently in force Contract relating to the disposition or acquisition by Apex of ownership of assets or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesoutside the Ordinary Course of Business; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ivi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit or other Indebtedness; (jvii) any settlement agreement entered into within five (5) years prior to purchase order or Contract for the date purchase of this Agreement; ortangible items of equipment or related services in any amount in excess of $50,000 individually or $100,000 in the aggregate, in each case in any fiscal year; (kviii) any other agreement, contract or commitment that has Inbound License; (ix) any Outbound License; (x) any Contract with a value of $1,000,000 or more individually. Neither Apex nor Top Partner; (xi) any of its subsidiaries, nor to Apex's knowledge Contract with a Top Insurance Carrier; (xii) any other party to an Apex Contract confidentiality and non-disclosure agreements (as defined below), is (or with nothing more than notice and/or whether the passage of time will be) in breach, violation or default under, and neither Apex nor any 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 Apex Company or any of its subsidiaries Subsidiaries is the beneficiary or the obligated party thereunder), other than those related to commercial transactions in the Ordinary Course of Business that are not individually material; (xiii) any Contract providing for “offshore” or outsourced the development of any material items of Technology by, for or on behalf of the Company or any of its Subsidiaries; (xiv) any Contract with federal, state, city, county, parish, municipal or other Governmental Entities; (A) any management service, legal partnership or joint venture Contract, and (B) any Contract that involves a sharing of revenues, profits or cash flows with other Persons; (xvi) any agency, dealer, distribution, sales representative, remarketer, reseller, or other Contract for the distribution of Company Products (other than agreements with remarketers, resellers and channel partners entered into in the Ordinary Course of Business); (xvii) any Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any product or service to any third party on a most favored nation basis or similar terms; (xviii) any Contract granting any license or other rights to or from the Company or any of its Subsidiaries with respect to Personal Information, other than grants to service providers, partners, suppliers and customers to use such Personal Information in the Ordinary Course of Business; (xix) any standstill or similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of the Company or any of its Subsidiaries or assets of the Company or any of its Subsidiaries or otherwise seeking to influence or exercise control over the Company or any of its Subsidiaries; (xx) any Contract pursuant to which the Company or any of its Subsidiaries has acquired a business or entity, or a material portion of the assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, exclusive license or otherwise, or any Contract pursuant to which it has any material ownership interest in any other Person; (xxi) any agreement of indemnification with officers, directors or managers of the Company or any of its Subsidiaries; (xxii) any Contract with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other Person retained by the Company or any of its Subsidiaries, in connection with this Agreement and the transactions contemplated hereby; (xxiii) any Contract or other arrangement to settle any Legal Proceeding or to settle any threatened or reasonably anticipated Legal Proceeding; (xxiv) any Contract between the Company and an Affiliated Medical Group that is bound material to the business pursuant to which the Company provides management, administrative, or support services and is not otherwise required to be listed under another clause of this Schedule 3.12(a); (xxv) any Contract that are addresses the provisions for business associate contracts required by HIPAA; (xxvi) any Contract with a third-party payor, including Governmental Entities, commercial health plan insurance carriers, and third party administrators; and (xxvii) any other Contract that involves the payment of $100,000 individually or $250,000 in the aggregate or more, in each case in fiscal year 2020 or 2021, and is not cancelable without penalty within ninety (90) days. (b) The Company has made available correct and complete copies of each Contract required to be disclosed pursuant to Sections 3.2, 3.9, 3.10, 3.11 (except for each Contract entered into on a Standard Form Agreement), 3.12 and 3.19(a). For the purposes of this Agreement, each of the foregoing Contracts referenced in this subsection 3.12(b) as well as any Contracts entered into subsequent to the Apex Schedules Agreement Date and prior to the Closing Date that would have been required to be disclosed pursuant to Sections 3.2, 3.9, 3.10, 3.11 (including, for the avoidance of doubt, each Contract entered into on a Standard Form Agreement), 3.12 and 3.19(a) if such Contract had been in effect as of the Closing Date, shall each be a “Material Contract” and collectively are the “Material Contracts.” (c) Each of the Company and its Subsidiaries has performed in all material respects all of the obligations required to be performed by it and is entitled to all benefits under, and is not alleged to be in material default in respect of, any Material Contract. Each of the Material Contracts is valid, binding and enforceable against the Company or its Subsidiaries (to the extent such agreement, contract or commitment, entity is a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract and is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, subject only to the knowledge effect, if any, of Apexapplicable bankruptcy and other similar Laws affecting the rights of creditors generally and rules of Law governing specific performance, each injunctive relief and other equitable remedies. There exists no material default or event of default or event, occurrence, condition or act, with respect to the Company or any of its Subsidiaries, that, with the giving of notice, the lapse of time or the happening of any other parties theretoevent or condition, enforceable in accordance with its terms, except (a) that the enforcement thereof may would reasonably be limited by expected to (i) bankruptcy, insolvency, reorganization, moratorium become a material default or other similar laws now material event of default under any Material Contract or hereafter in effect relating to creditors' rights generally and (ii) general principles give any third party (A) the right to declare a material default or exercise any material remedy under any Material Contract, (B) the right to a material rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of equity any material obligation of the Company or any of its Subsidiaries under any Material Contract, or (regardless D) the right to cancel, terminate or modify any Material Contract. None of whether enforceability the Company nor any of its Subsidiaries has received any written notice or any other written communication regarding, or to the Knowledge of the Company, is considered in a proceeding in equity aware of, any actual or at lawpossible violation or breach of, default under, or intention to cancel or modify any Material Contract. None of the Company nor any of its Subsidiaries has any Liability for renegotiation of Contracts with Governmental Entities. The Company has heretofore made available to Parent (1) correct and complete copies of each written Material Contract and (b2) as would notsummaries of each oral Material Contract, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apextogether with any and all material amendments and supplements thereto and “side letters” and similar documentation relating thereto.

Agreements, Contracts and Commitments. Neither Apex nor (a) Section 2.11(a) of the Disclosure Letter sets forth all contracts that are material to the business or operations of the Company or any Subsidiary or which by their terms seek to limit or define those activities in which the Company or any Subsidiary is 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 its subsidiaries the transactions contemplated hereby or thereby (collectively, together with any agreements disclosed in Section 2.11(a) of the Disclosure Letter in response to the next sentence, the “Material Contracts”). Except as set forth in Section 2.11(a) of the Disclosure Letter, the Company or any Subsidiary does not have, is not a party to or nor is it bound byby any of the following types of Material Contracts: (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 Apex'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 Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexorganization; (bv) except as set forth in Section 2.11(a)(v) of the Disclosure Letter, any agreement or plan, plan (including, without limitation, any stock option plan, stock appreciation right rights plan or stock purchase plan, ) with respect to benefits 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) except as set forth in Section 2.11(a)(vii) of the Disclosure Letter, any lease of real or personal property having a value individually in excess of $50,000; (viii) any agreement of indemnification indemnification, guaranty or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businesssuretyship; (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (ex) any agreement, contract or commitment currently relating to current or future capital expenditures or involving future payments individually in force excess of $50,000; (xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition by Apex of assets, properties or any of its subsidiaries after the date of this Agreement of a material amount of assets not interest in any business enterprise outside the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesthe Company’s business; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixii) any 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 or instruments of surety referred to in subparagraph (vi) above; (jxiii) any settlement purchase order or contract for the purchase of raw materials or the provision of services involving $100,000 or more, other than purchases in the ordinary course of business; (xiv) any construction contracts; (xv) any distribution, joint marketing, licensing or development agreement; (xvi) any agreement entered into within five (5) years prior under which the Company’s products must satisfy any product standards or performance specifications or under which the Company has the right to the date include any logos, trademark, certification or similar endorsement of this Agreementany third party organization on its products; or (kxvii) any other agreement, contract or commitment that has a value involves or could result in payments to or by the Company of $1,000,000 100,000 or more individually. Neither Apex nor any of its subsidiariesor is not cancelable by the Company without penalty within one hundred eighty (180) days. (b) Except for such alleged breaches, nor to Apex's knowledge any other party to an Apex Contract (as defined below)violations and defaults, is (or with nothing more than notice and/or the passage of time will be) in and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.11(b) of the Disclosure Letter, the Company has not since June 30, 2003 breached, violated or defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Material Contract is in full force and effect, effect and is a legal, valid and binding obligation not subject to any default thereunder of Apex or a subsidiary of Apex and, which the Company has knowledge by any party obligated to the knowledge Company pursuant thereto. The Company will use commercially reasonable efforts to obtain prior to the Effective Time, all necessary consents, waivers and approvals of Apex, each of parties to any and all contracts and agreements as are required in connection with the Merger and the other parties theretotransactions contemplated hereby and by the Ancillary Agreements in order to avoid any breach or default thereunder or the loss of any material rights thereunder, enforceable in accordance with its termsincluding all such consents, except approvals or waivers necessary to validly transfer and assign all such contracts and agreements to the Surviving Company (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex“Requisite Consents”).

Agreements, Contracts and Commitments. Neither Apex Except as set forth in the MetaTools Schedules, neither MetaTools nor any 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 Apex's MetaTools' Board of Directors, other than those that are terminable by Apex MetaTools or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Apex; the extent general principles of wrongful termination law may limit MetaTools' 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;; 20 (c) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business; business other than indemnification agreements between MetaTools or any 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 Apex MetaTools or any of its subsidiaries to engage in any line of business, conduct business in any geographic area 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 Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; enterprise; or (f) any dealer, distributor, material joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any 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 has a value of $1,000,000 or more individually. Neither Apex MetaTools nor any of its subsidiaries, nor to Apex's MetaTools' knowledge any other party to an Apex a MetaTools Contract (as defined below), is (has breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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 Apex MetaTools or any of its subsidiaries is a party or by which it is bound that are required to be disclosed of the type described in the Apex Schedules clauses (a) through (l) above (any such agreement, contract or commitment, a "APEX METATOOLS CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex MetaTools 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 aggregate). Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as which would not, individually or in the aggregate, be reasonably expected likely to result in a Material Adverse Effect on Apexbe material to MetaTools.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries Bio-Quant is a not party to or is bound by: (a) except as described in Section 2.12(a) of the Bio-Quant Disclosure Schedule, any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (b) except as described in Section 2.12(a) of the Bio-Quant Disclosure Schedule, any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Apex's Board of Directorsemployee, other than those that are not terminable by Apex or any of its subsidiaries Bio-Quant on no more than thirty (30) days' days notice without liability or financial obligation liability, except to Apexthe extent general principles of wrongful termination law may limit Bio-Quant’s ability to terminate employees at will; (bc) except as described in Section 2.12(a) of the Bio-Quant Disclosure Schedule, 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; (cd) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessbusiness other than indemnification agreements between Bio-Quant and any of their officers or directors; (de) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries Bio-Quant to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (ef) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $25,000 and not cancelable without penalty; (g) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex and its subsidiaries taken as a wholeenterprise; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $25,000; (i) any joint marketing or development agreement; (j) any settlement distribution agreement entered into within five (5identifying any that contain exclusivity provisions); (k) years prior to the date of this Agreementany contract with any Governmental Authority; or (kl) any other agreement, contract or commitment that has a value (excluding real and personal property leases) which involve payment by or to Bio-Quant under any such agreement, contract or commitment of $1,000,000 50,000 or more individuallyin the aggregate. Neither Apex nor any of its subsidiariesBio-Quant has not, nor to Apex's Bio-Quant’s knowledge has any other party to an Apex a Bio-Quant Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, or received notice that it has breached, violated, or defaulted under, any of the material terms or conditions of of, or terminated any of the agreements, contracts or commitments to which Apex or any of its subsidiaries Bio-Quant is a party or by which it is bound that are required to be disclosed of the type described in the Apex Schedules clauses (a) through (l) above (any such agreement, contract or commitment, a "APEX CONTRACT"“Bio-Quant Contract”) in such a manner as would permit any other party to cancel or terminate any such Apex Bio-Quant Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breacheswhich would reasonably be expected to have a Material Adverse Effect on Bio-Quant. As to Bio-Quant, violations or defaults, in the aggregate). Each Apex each Bio-Quant Contract is valid, binding, and enforceable and in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof as enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or bankruptcy and other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexequity.

Agreements, Contracts and Commitments. Neither Apex Except as set forth in Section 2.17 of the Disclosure Schedule (specifying the appropriate paragraph), neither the Company nor any of its subsidiaries Subsidiaries is a party to or to, nor is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Apex's Board of Directors, individual consultant or salesperson (other than those “at will” employment agreements entered into in the ordinary course of business that are terminable by Apex do not provide for severance payments, a notice period upon termination, change of control payments, acceleration of obligations (including vesting of options or otherwise) or other benefits not disclosed in Section 2.24(b) of the Disclosure Schedule), any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any of its subsidiaries on no more than thirty (30) days' notice without liability consulting or financial obligation to Apexsales agreement, contract, or commitment with a firm or other organization; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right rights plan or stock purchase planplan (A) relating to the sale, issuance, grant, exercise, award, purchase or redemption of any shares of Company Capital Stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants, or other rights therefore, except for the Plan, or (B) 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 fidelity or surety bond or completion bond; (iv) any lease of personal property having a value in excess of $25,000 individually or $100,000 in the aggregate; (v) any lease of real property; (vi) any agreement of indemnification or any guaranty other than (except pursuant to End User Agreements); (vii) any agreement of indemnification entered into under any End User Agreement that could result in connection with an indemnification payment by the sale Company or license any of computer its Subsidiaries in excess of two (2) times the value of total payments to the Company or communications hardware products in the ordinary course of businessits Subsidiaries under such agreement; (dviii) any agreement, contract or commitment containing any covenant limiting relating to capital expenditures and involving future payments in any respect excess of $25,000 individually or $100,000 in the right of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsaggregate; (eix) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex of assets or any of its subsidiaries after the date of this Agreement of a material amount of assets not interest in any business enterprise outside the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesthe Company’s business; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (jxi) any purchase order or contract for the purchase of materials involving payments in excess of $10,000 individually or $50,000 in the aggregate; (xii) any construction contracts; (xiii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement or similar agreement; (xiv) any agreement, contract or commitment to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest; (xv) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company or any of its Subsidiaries; (xvi) any Contract limiting in any respect the right of the Company or any of its Subsidiaries to engage or participate, or compete with any person, in any line of business, market or geographic area, or to make use of any Intellectual Property, or any Contract granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of first refusal, rights of first negotiation or similar rights or terms to any person, or any Contract otherwise limiting the right of the Company or any of its Subsidiaries to sell, distribute or manufacture any Company Product or to purchase or otherwise obtain any software, components, parts or services; (xvii) any Contract with any Governmental Entity (a “Government Contract”) or any material federal, state, county, local or foreign governmental consent, license, permit, grant, or other authorization of a Governmental Entity that is required for the operation in all material respects of the Company’s of any of its Subsidiaries’ business; (xviii) any settlement agreement entered into within five or litigation “standstill” agreement; or (5xix) years other than customer purchase orders arising in the ordinary course of business to the extent that the purchase or sale provided for therein has been performed in full on or prior to the date of this Agreement; or (k) , any other agreement, contract or commitment that has a value involves payments in excess of $1,000,000 25,000 individually or $100,000 in the aggregate or more individuallyand is not cancelable without penalty within 30 days. (b) True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.17 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Parent. Neither Apex nor Each Material Contract to which the Company or any of its subsidiaries, nor to Apex's knowledge any other Subsidiaries is a party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any of its subsidiaries has properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company or its Subsidiary, enforceable against the Company or its Subsidiaries and, to the Knowledge of the Company, each other party thereto in accordance with its terms, and is in full force and effect with respect to the Company or its Subsidiary. The Company and its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received written notice or notice via electronic mail that it has breached, violated or defaulted under, any of the material terms or conditions of any such Material Contract and, to the Company’s Knowledge, any other Contract. To the Company’s Knowledge, no party obligated to the Company pursuant to any such Material Contract has breached, violated or defaulted under such Material Contract, or taken any action or failed to act, such that, with the lapse of time, giving of notice or both, such action or failure to act would constitute such a breach, violation or default under such Material Contract by any such other party. (c) The Company and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Material Contract to have been performed by the Company or such Subsidiary prior to the date hereof, and to the Knowledge of the agreementsCompany, contracts without giving effect to the Merger, the Company will fulfill, when due, all of its obligations under the Material Contracts that remain to be performed after the date hereof. (d) To the Knowledge of the Company and its Subsidiaries, with respect to any Government Contract, there is, as of the date of this Agreement, no: (i) claim or commitments to which Apex request by a Governmental Entity for a contract price adjustment; (ii) dispute involving the Company or any of its subsidiaries is a party Subsidiaries; or (iii) claim or equitable adjustment by which it is bound that are required to be disclosed in the Apex Schedules (Company or any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit of its Subsidiaries. Neither the Company nor any other party to cancel or terminate of its Subsidiaries has any such Apex Contract, or would permit any other party to seek material damages or other remedies (liability for any or all renegotiation of such breaches, violations or defaults, in the aggregate). Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on ApexGovernment Contracts.

Agreements, Contracts and Commitments. Neither Apex nor any of Predix and its subsidiaries is a party are not parties to or is bound by: (a) except as described in Section 2.12(a) of the Predix Disclosure Schedule, any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (b) except as described in Section 2.12(a) of the Predix Disclosure Schedule, any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Apex's Board of Directorsemployee, other than those that are not terminable by Apex Predix or any 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 Predix’s or financial obligation its subsidiaries’ ability to Apex;terminate employees at will; Table of Contents (bc) except as described in Section 2.12(a) of the Predix Disclosure Schedule, 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; (cd) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessbusiness other than indemnification agreements between Predix or its subsidiaries and any of their officers or directors; (de) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex Predix or any of its subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (ef) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $25,000 and not cancelable without penalty; (g) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex and its subsidiaries taken as a wholeenterprise; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $25,000; (i) any joint marketing or development agreement; (j) any settlement distribution agreement entered into within five (5) years prior to the date of this Agreementidentifying any that contain exclusivity provisions); or (k) any other agreement, contract or commitment that has a value (excluding real and personal property leases) which involve payment by Predix or its subsidiaries under any such agreement, contract or commitment of $1,000,000 25,000 or more individuallyin the aggregate. Neither Apex nor any of Predix and its subsidiariessubsidiaries have not, nor to Apex's Predix’s or its subsidiaries’ knowledge has any other party to an Apex a Predix Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, or received notice that it has breached, violated, or defaulted under, any of the material terms or conditions of of, or terminated any of the agreements, contracts or commitments to which Apex Predix or any of its subsidiaries is are a party or by which it is they are bound that are required to be disclosed of the type described in the Apex Schedules clauses (a) through (k) above (any such agreement, contract or commitment, a "APEX CONTRACT"“Predix Contract”) in such a manner as would permit any other party to cancel or terminate any such Apex Predix Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breacheswhich would reasonably be expected to have a Material Adverse Effect on Predix. As to Predix and its subsidiaries, violations or defaults, in the aggregate). Each Apex each Predix Contract is valid, binding, enforceable and in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof as enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or bankruptcy and other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexequity.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries is a party to or is bound by:(a). (a) Section 4.13(a) of the PubCo Disclosure Schedule lists the following PubCo Contracts in effect as of the date of this Agreement (each, a “PubCo Material Contract” and collectively, the “PubCo Material Contracts”): (i) each PubCo Contract relating to any employment material 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 Apex's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability other employee benefit plans or financial obligation to Apexarrangements; (bii) each PubCo Contract requiring payments by PubCo after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any current PubCo Associate that is not immediately terminable at-will by PubCo without notice, severance, or other similar cost or liability; (iii) each PubCo Contract relating to any agreement or plan, including, without limitation, including any stock option plan, stock appreciation right plan or plan, stock purchase plan, severance plan, policy or agreement, any of the payments or benefits of which will be increased, or the vesting of benefits or payments 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 payments or benefits of which will be calculated on the basis of any of the transactions contemplated by this AgreementContemplated Transactions; (civ) each PubCo Contract relating to any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license Ordinary Course of computer or communications hardware products in the ordinary course of businessBusiness; (dv) any agreement, contract or commitment each PubCo Contract containing (A) any covenant limiting in any respect the right freedom of Apex PubCo, its Subsidiaries or any of its subsidiaries the Surviving Corporation to engage in any line of business, conduct business in any geographic area or to compete with any person Person, or granting limiting the development, manufacture or distribution of PubCo’s products or services (B) any exclusive distribution rightsmost-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the ability of PubCo to conduct its business; (evi) any agreement, contract or commitment currently each PubCo 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; (vii) each PubCo Contract relating to the disposition or acquisition by Apex of material assets or any 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 Apex has any material ownership interest in any corporationEntity, partnershipin each case, joint venture or other business enterprise other than Apex's subsidiariesinvolving payments in excess of $100,000; (fviii) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any of its subsidiaries have continuing material obligations each PubCo Contract relating to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any 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 in each case in excess of $100,000 with respect to any assets of PubCo or any of its Subsidiaries or any loans or debt obligations with officers or directors of PubCo; (jix) any settlement agreement entered into within five (5) years prior each PubCo Contract requiring payment by or to PubCo 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 PubCo, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which PubCo has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which PubCo has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by PubCo or (D) any Contract to license any Patent, trademark registration, service ▇▇▇▇ registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of PubCo or any Contract to sell, distribute or commercialize any products or service of PubCo, in each case, except for PubCo Contracts entered into in the Ordinary Course of Business; (x) each PubCo Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to PubCo in connection with the Contemplated Transactions; (xi) each PubCo Real Estate Lease; (xii) each PubCo Contract to which PubCo 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, PubCo in excess of $100,000; or (kxiii) any other PubCo Contract that is not terminable at will (with no penalty or payment) by PubCo or its Subsidiaries, as applicable, and (A) which involves payment or receipt by PubCo or its Subsidiaries after the date of this Agreement under any such agreement, contract Contract or commitment that has a value of more than $100,000 in the aggregate, or 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 PubCo and its Subsidiaries, taken as a whole. (b) PubCo has delivered or made available to the Company accurate and complete copies of all PubCo Material Contracts, including all amendments thereto. There are no PubCo Material Contracts that are not in written form. Neither Apex PubCo nor any of its subsidiariesSubsidiaries has, nor to Apex's knowledge PubCo’s Knowledge, as of the date of this Agreement has any other party to an Apex Contract (as defined below)a PubCo Material Contract, is (breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") PubCo Material Contract in such a manner as would permit any other party to cancel or terminate any such Apex PubCo Material Contract, or would permit any other party to seek material damages or other remedies (for any or all which would reasonably be expected to have a PubCo Material Adverse Effect. As to PubCo and its Subsidiaries, as of such breachesthe date of this Agreement, violations or defaults, in the aggregate). Each Apex each PubCo Material Contract is valid, binding, enforceable and in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, subject to the knowledge of Apex, each Enforceability Exceptions. As of the date of this Agreement, no Person is renegotiating, or has a right pursuant to the terms of any PubCo Material Contract to change, any material amount paid or payable to PubCo under any PubCo Material Contract or any other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium material term or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles provision of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a any PubCo Material Adverse Effect on ApexContract.

Agreements, Contracts and Commitments. Neither Apex SCHEDULE 3.13(a) lists all written contracts or other agreements not included on Schedule 3.12(g) to which the Company is a party. Except as set forth on SCHEDULE 3.13(a), the Company has not been nor any of its subsidiaries is currently a party to or nor is bound by:by any of the following (whether written or oral): (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 health, medical, dental, life or other employee welfare benefit plans or arrangements; (v) any tuition reimbursement, dependent care reimbursement or other tax-favored employee fringe benefit plans or arrangements; (vi) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Apex's Board of Directors, other than those that are terminable by Apex individual consultant or salesperson or any of its subsidiaries 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 Apex;the Company. (bvii) any agreement or 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 value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (cviii) any fidelity or surety bond or completion bond; (ix) any agreement, contract or commitment under which it has limited or restricted its right to compete with any person in any respect; (x) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessguaranty; (dxi) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (exii) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any capital expenditures and involving future payments in excess 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries$5,000; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gxiii) 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 Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing disposition or acquisition of money assets or extension of credit; (j) any settlement agreement entered into within five (5) years prior to interest in any business enterprise outside the date of this Agreement; or (k) any other agreement, contract or commitment that has a value of $1,000,000 or more individually. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any ordinary course of the material terms or conditions of any of the agreements, contracts or commitments to which Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.Company's business;

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries Except as set forth on Schedule 7.1.12, Transferor 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) 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 Apex'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 Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apex;organization, (bv) any agreement or 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 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 fidelity or surety bond or completion bond, (vii) any lease of personal property having a value individually in excess of $5,000, (viii) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business;guaranty, (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries Transferor to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rights;person, (ex) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any capital expenditures and involving future payments in excess 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries;$5,000, (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gxi) any agreement, contract or commitment currently relating to the disposition or acquisition of material assets or any interest in force to provide source code to any third party for any product or technology that is material to Apex and its subsidiaries taken as a whole;business enterprise outside the ordinary course of the Business, (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixii) any 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 (viii) hereof, (jxiii) any settlement agreement entered into within five purchase order or contract for the purchase of raw materials involving $10,000 or more other than purchases in the ordinary course of business, (5xiv) years prior to the date of this Agreement; any construction contracts, (xv) any distribution, joint marketing or development agreement, or (kxvi) any other agreement, contract or commitment that has a value of involves $1,000,000 5,000 or more individually. Neither Apex nor any of its subsidiariesand is not cancelable without penalty within thirty (30) days. (xvii) Except for such alleged breaches, nor to Apex's knowledge any other party to an Apex Contract (as defined below)violations and defaults, is (or with nothing more than notice and/or the passage of time will be) in and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Schedule 7.1.12, Transferor has not breached, violated or defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries it is a party or by which it is bound that and which are required to be disclosed set forth in the Apex Schedules Schedule 7.1.12 (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex Contract, or would permit any other party to seek material damages or other remedies (except for any or all of such breaches, violations or defaults, in the aggregate)defaults that will not have a Material Adverse Effect. Each Apex Contract agreement, contract or commitment set forth in any of Transferor Schedules is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex effect and, except as otherwise disclosed in Schedule 3.12(b), is not subject to the any default thereunder of which Transferor has knowledge of Apex, each of the other parties by any party obligated to Transferor pursuant thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries is a party to (a) Except as set forth in Exhibit C, the Company does not have, --------- or is not bound by: (ai) any collective bargaining agreement, (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 Apex'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 Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apex;organization, (bv) any agreement or 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 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 fidelity or surety bond or completion bond, (vii) any lease of personal property having a value individually in excess of $25,000, (viii) any agreement of indemnification or any guaranty guaranty, other than any agreement of indemnification entered into as set forth in connection with the sale or license of computer or communications hardware products agreements listed in the ordinary course of business;Exhibit C, --------- (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rights;person, (ex) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any capital expenditures and involving future payments in excess 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries;$25,000, (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gxi) 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 that is material to Apex and its subsidiaries taken as a whole;business enterprise outside the ordinary course of the Company's business, (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (ixii) any 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 (viii) hereof, (jxiii) any settlement agreement entered into within five purchase order or contract for the purchase of materials involving $25,000 or more, (5xiv) years prior to the date of this Agreement; any construction contracts, (xv) any distribution, joint marketing or development agreement, or (kxvi) any other agreement, contract or commitment that has a value of involves $1,000,000 25,000 or more individually. Neither Apex nor any of its subsidiariesor is not cancelable without penalty within thirty (30) days. (b) The Company has not breached, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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, license or commitments commitment to which Apex or any of its subsidiaries it is a party party, by which it benefits or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract contract, license or commitment, a "APEX CONTRACTContract") in ), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a manner as would permit any other party to cancel breach, violation or terminate any such Apex Contractdefault with the lapse of time, giving of notice 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)both. Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex effect and, except as otherwise disclosed in Exhibit C, is not subject to any default thereunder by any party obligated to --------- the Company pursuant thereto. The Company has obtained, or will obtain prior to the knowledge Closing Date, all necessary consents, waivers and approvals of Apex, each of parties to any Contract as are required thereunder in connection with the other parties thereto, enforceable in accordance with its terms, except (a) Merger so that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter all such Contracts will remain in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in without modification after the aggregate, be reasonably expected to result in a Material Adverse Effect on ApexClosing.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries (A) Except as specifically disclosed in Schedule 2.12, Trilogy does not have, is not a party to or nor is it bound by: (a1) Any collective bargaining agreements; (2) Any agreements that contain any unpaid severance liabilities or obligations; (3) Any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (4) Any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Apex'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, not terminable by Apex or any of its subsidiaries Trilogy on no more than thirty (30) days' days notice without liability or financial obligation liability, except to Apexthe extent general principles of wrongful termination law may limit Trilogy's ability to terminate employees at will; (b5) any agreement 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; (c6) any Any fidelity or surety bond or completion bond; (7) Any lease of personal property having a value individually in excess of $2,000; (8) Any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business; (d9) any Any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries Trilogy to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (e10) any Any agreement, contract or commitment currently relating to capital expenditures and involving future obligations in force excess of $10,000 in any single instance or $20,000 in the aggregate; (11) Any agreement, contract or commitment relating to the disposition or acquisition by Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesenterprise; (f12) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any Any 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 Schedule 2.12(A)(12) hereof; (j13) Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $1,000 or more in any settlement agreement entered into within five (5) years prior to single instance or $20,000 or more in the date of this Agreement; oraggregate; (k14) any Any construction contracts; (15) Any distribution, joint marketing or development agreement; (16) Any other agreement, contract or commitment that has a value of which involves $1,000,000 2,000 or more individually. Neither Apex nor in any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (single instance or with nothing more than notice and/or $45,000 in the passage aggregate and is not cancelable without penalty within thirty (30) days other than standard end-user licenses of time will beTrilogy's products and services in the ordinary course of business consistent with past practice, or (17) in breachAny agreement which is otherwise material to Trilogy's business. (B) (1) Trilogy has not breached, violation or default under, and neither Apex nor received any of its subsidiaries has received written notice claim or threat 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed (including those set forth in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT"of Trilogy Schedules) in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexsame.

Agreements, Contracts and Commitments. Neither Apex Except as set forth in the SPC Schedules, neither SPC nor any 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 Apex's Board of Directorsemployee, other than those that are not terminable by Apex SPC or any 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 SPC's or financial obligation any of its subsidiaries, ability to Apex; 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 any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business; business other than indemnification agreements between SPC or any 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 Apex SPC or any of its subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person person; (g) any agreement, contract or granting any exclusive distribution rightscommitment relating to capital expenditures and involving future obligations in excess of $50,000 and not cancelable without penalty; (eh) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; enterprise; (i) any 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 (excluding agreements with resellers, value added resellers or independent software vendors entered into within five (5) years prior in the ordinary course of business that do not permit such resellers or vendors to the date modify SPC's or any of this Agreementits subsidiaries' software products); or (k) any distribution agreement (identifying any that contain exclusivity provisions); or (l) any other agreement, contract or commitment that has a value (excluding real and personal property leases) which involve payment by SPC or any of its subsidiaries under any such agreement, contract or commitment of $1,000,000 50,000 or more individuallyin the aggregate and is not cancelable without penalty within thirty (30) days. Neither Apex SPC nor any of its subsidiaries, nor to ApexSPC's knowledge any other party to an Apex SPC Contract (as defined below), is (has breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries SPC is a party or by which it is bound that are required to be disclosed of the type described in the Apex Schedules clauses (a) through (l) above (any such agreement, contract or commitment, a an "APEX CONTRACTSPC Contract") in such a manner as would permit any other party to cancel or terminate any such Apex SPC 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 aggregate). Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as which would not, individually or in the aggregate, be reasonably expected to result in have a Material Adverse Effect on ApexSPC.

Agreements, Contracts and Commitments. Neither Apex nor any Set forth in Section 2.16 of its subsidiaries the HTI Disclosure Letter are a complete and correct list and summary description of all material contracts, agreements, orders, leases, licenses and other commitments (each a "HTI Contract") of HTI at the date of this Agreement. Except as set forth in the HTI Disclosure Letter, HTI is not a party to or nor is bound by: (a) any collective bargaining agreements; (b) any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing, or retirement plans, or any other employee benefit plans or arrangements; (c) any employment or consulting agreement, contract contract, or commitment with any officer officer- or director or higher director-level employee employee, or member of ApexHTI's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apex; (bd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan 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 any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessbusiness other than indemnification agreements between HTI and any of its officers or directors; (df) any agreement, contract contract, or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries HTI to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (eg) any agreement, contract contract, or commitment relating to capital expenditures and involving future obligations in excess of $10,000 and not cancelable without penalty; (h) any agreement, contract, or commitment currently in force relating to the disposition or acquisition by Apex or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture venture, or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybexenterprise; (i) any mortgages, indentures, guaranteesloans, loans or credit agreements, security agreements agreements, or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement joint marketing or development agreement (excluding agreements with resellers, value added resellers, or independent software vendors entered into within five (5) years prior in the ordinary course of business that do not permit such resellers or vendors to the date of this Agreement; ormodify HTI's software products); (k) any distribution agreement (identifying any that contain exclusivity provisions); or (l) any other agreement, contract, or commitment which involves payment by HTI under any such agreement, contract or commitment that has a value of $1,000,000 100,000 or more individuallyindividually and is not cancelable without penalty within thirty (30) days. Neither Apex nor any of its subsidiariesHTI, nor to ApexHTI's knowledge any other party to an Apex Contract (as defined below)a HTI Contract, is (has breached, violated, or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its subsidiaries has or received written notice that it has breached, violated violated, or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") HTI Contracts in such a manner as would permit any other party to cancel or terminate any such Apex HTI 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 Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexdamages.

Agreements, Contracts and Commitments. Neither Apex (a) Except as listed in Part 2.9(a) of the Advaxis Disclosure Schedule, as of the date of this Agreement, neither Advaxis nor any of its subsidiaries Subsidiaries is a party to or is bound byby any: (ai) any employment Advaxis Contract that would be required to be filed by Advaxis as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or consulting agreement, contract disclosed on a Current Report on Form 8-K that has not been filed or commitment with any officer or director or higher level employee or member of Apex's Board of Directors, other than those that are terminable incorporated by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apexreference in the Advaxis SEC Reports; (bii) Advaxis Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (iii) Advaxis 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 Advaxis or its Subsidiaries on ninety (90) days’ notice without liability, except to the extent general principles of wrongful termination law may limit Advaxis’, its Subsidiaries’ or such successor’s ability to terminate employees at will; (iv) Advaxis 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 Transactions, including the Merger (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 AgreementTransactions; (cv) any agreement indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of indemnification or any guaranty indebtedness, in each case providing for indebtedness in excess of $100,000, other than indebtedness solely between or among any agreement of indemnification entered into in connection with the sale or license Advaxis and any of computer or communications hardware products in the ordinary course of businessits wholly owned Subsidiaries; (dvi) Advaxis Contract relating to any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex Advaxis, its Subsidiaries or any of its subsidiaries the Surviving Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsPerson; (evii) Advaxis Contract that contains a put, call, right of first refusal or similar right pursuant to which Advaxis or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person; (viii) material settlement agreement or similar agreement with a Governmental Authority to which Advaxis or any of its Subsidiaries is a party that contains material obligations or limitations on Advaxis’ or such Subsidiary’s conduct; (ix) Advaxis Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penalty; (x) Advaxis Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex of material assets or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesEntity in excess of $100,000; (fxi) Advaxis Contract relating to (i) any distribution 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 Advaxis (iii) any dealer, distributor, joint marketing marketing, alliance, joint venture, cooperation, development or development other agreement currently in force under which Apex Advaxis or any of its subsidiaries have 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 lessservice, or any material agreement pursuant to which Apex Advaxis or any of its subsidiaries have Subsidiaries has continuing material obligations to jointly develop any intellectual property Intellectual Property that will not be owned, in whole or in part, by Apex Advaxis or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety such Subsidiary; or (90) days or less; (giv) 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 Apex and its subsidiaries taken as a whole; (h) any agreement, contract or commitment Contract currently in force to license any third party to manufacture or reproduce produce any Apex Advaxis product, service or technology or any agreement, contract or commitment Contract currently in force to sell sell, distribute or distribute commercialize any Apex productsAdvaxis products or service, service or technology except except, in each case, agreements with distributors or sales representative entered 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 CybexBusiness; (ixii) Advaxis Contract with any mortgagesPerson, indenturesincluding any financial advisor, guaranteesbroker, loans or credit agreementsfinder, security agreements investment banker or other agreements or instruments relating Person, providing advisory services to Advaxis in connection with the borrowing of money or extension of credittransactions set forth in this Agreement, including the Merger; (jxiii) Advaxis Contract pursuant to which any settlement agreement entered into within five Advaxis IP Rights are licensed by or to Advaxis or any of its Subsidiaries, other than (5A) years prior “shrink wrap” or other licenses for generally commercially available software (including open source software) or hosted services, (B) customer or channel partner Advaxis Contracts substantially on Advaxis’ or any of its Subsidiaries’ standard forms, (C) Advaxis Contracts that authorizes Advaxis or any of its Subsidiaries to identify another Person as a customer, vendor, supplier or partner or that authorizes another Person to identify Advaxis or any of its Subsidiaries as a customer, vendor, supplier or partner of such Person, (D) Advaxis Contracts that provide a limited, non-exclusive license to use the date trademarks included in the Advaxis IP Rights to promote any products or services of this AgreementAdvaxis or its Subsidiaries or to otherwise provide such products or services to others, (E) Advaxis Contracts with Advaxis’ or its Subsidiaries’ employees or contractors substantially on Advaxis’ or its Subsidiaries’ standard forms, and (F) non-disclosure agreements (the “Advaxis Standard Contracts”); or (kxiv) any other agreement, contract or commitment that has a value of $1,000,000 (i) which involves payment or more individually. Neither Apex nor any of receipt by Advaxis or its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default under, and neither Apex nor any 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 Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (Subsidiaries under any such agreement, contract or commitment, a "APEX CONTRACT") commitment of $100,000 or more in such a manner as would permit any other party to cancel the aggregate or terminate any such Apex Contract, or would permit any other party to seek material damages or other remedies (for any or all obligations after the date of such breaches, violations or defaults, this Agreement in excess of $100,000 in the aggregate), or (ii) that may not be terminable with no liability or cost within ninety (90) days. Each Apex such Contract is described in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except clauses (a) that the enforcement thereof may be limited by through (in) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating is referred to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and herein as an “Advaxis Material Contract”. (b) Advaxis has delivered to Biosight accurate and complete (except for applicable redactions thereto) copies of all Advaxis Material Contracts, including all amendments thereto. There are no Advaxis Material Contracts that are not in written form. Except as would notnot reasonably be expected to have, individually or in the aggregate, be reasonably expected to result in a an Advaxis Material Adverse Effect Effect, (i) neither Advaxis nor any of its Subsidiaries is (and, to the Knowledge of Advaxis, no other party is) in default under or breach of any Contract to which Advaxis is a party, there are no events or conditions, including with respect to any events or conditions as a result of the COVID-19 pandemic, which constitute, or, after notice or lapse of time or both, will constitute, a default on Apexthe part of Advaxis or any of its Subsidiaries or, to the Knowledge of Advaxis, any counterparty under such Advaxis Contract, (ii) each of the Advaxis Material Contracts is in full force and effect and is a valid, binding and enforceable obligation of Advaxis and its Subsidiaries, except (A) that such enforcement may be subject to the Bankruptcy and Equity Exception, (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought, and (C) to the extent that any Advaxis Material Contract expires in accordance with its terms, and (iii) Advaxis and its Subsidiaries have performed all respective material obligations required to be performed by them to date under the Advaxis Material Contracts to which they are a party.

Agreements, Contracts and Commitments. Neither Apex nor any Part 2.9 of its subsidiaries is a party to or is bound bythe TorreyPines Disclosure Schedule identifies: (a) each TorreyPines 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 Apex's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability other employee benefit plans or financial obligation to Apexarrangements; (b) each TorreyPines 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 TorreyPines or its Subsidiaries on ninety (90) days notice without liability, except to the extent general principles of wrongful termination law may limit TorreyPines’ or TorreyPines’ Subsidiaries’ ability to terminate employees at will; (c) each TorreyPines 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 TorreyPines Contract relating to any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale Ordinary Course of Business other than indemnification agreements between TorreyPines and any of its respective officers or license of computer or communications hardware products in the ordinary course of businessdirectors; (de) each TorreyPines Contract relating to any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex TorreyPines or any of its subsidiaries Subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsPerson; (ef) each TorreyPines Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penalty; (g) each TorreyPines Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex of material assets or any 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex and its subsidiaries taken as a wholeEntity; (h) any agreement, contract or commitment currently in force each TorreyPines Contract relating to license any third party to manufacture or reproduce any Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any 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 in excess of $100,000 or creating any Encumbrances with respect to any assets of TorreyPines or any TorreyPines Subsidiary or any loans or debt obligations with officers or directors of TorreyPines; (i) each TorreyPines Contract relating to (i) any distribution 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 TorreyPines (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which TorreyPines or its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which TorreyPines or its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by TorreyPines or such TorreyPines Subsidiary; or (iv) any agreement, contract or commitment currently in force to license any third party to manufacture or produce any TorreyPines product, service or technology or any agreement, contract or commitment currently in force to sell, distribute or commercialize any TorreyPines products or service except agreements with distributors or sales representatives in the Ordinary Course of Business; (j) each TorreyPines Contract with any settlement agreement entered into within five (5) years prior Person, including without limitation any financial advisor, broker, finder, investment banker or other Person, providing advisory services to TorreyPines in connection with the date of this AgreementContemplated Transactions; or (k) any other agreement, contract or commitment that has a value (i) which involves payment or receipt by TorreyPines or its Subsidiaries under any such agreement, contract or commitment of $1,000,000 100,000 or more individuallyin the aggregate or obligations after the date of this Agreement in excess of $100,000 in the aggregate, or (ii) that is material to the business or operations of TorreyPines and its Subsidiaries. Neither Apex TorreyPines has delivered or made available to Axonyx accurate and complete (except for applicable redactions thereto) copies of all material written TorreyPines Contracts, including all amendments thereto. There are no TorreyPines Contracts that are not in written form. Except as set forth on Part 2.9 of the TorreyPines Disclosure Schedule, neither TorreyPines nor any of its subsidiariesSubsidiaries has, nor to Apex's knowledge TorreyPines’ Knowledge, as of the date of this Agreement has any other party to an Apex a TorreyPines Material Contract (as defined below), is (breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its 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 Apex TorreyPines or any of its subsidiaries Subsidiaries is a party or by which it is bound that are required to be disclosed of the type described in the Apex Schedules clauses (a) through (k) above (any such agreement, contract or commitment, a "APEX CONTRACT"“TorreyPines Material Contract”) in such a manner as would permit any other party to cancel or terminate any such Apex TorreyPines Material Contract, or would permit any other party to seek material damages or other remedies (for any or all which would reasonably be expected to have a TorreyPines Material Adverse Effect. As to TorreyPines and its Subsidiaries, as of such breachesthe date of this Agreement, violations or defaults, in the aggregate). Each Apex each TorreyPines Material Contract is valid, binding, enforceable and in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex and, to the knowledge of Apex, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by subject to: (i) laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally insolvency and the relief of debtors; and (ii) general principles rules of equity law governing specific performance, injunctive relief and other equitable remedies. The consummation of the Contemplated Transactions shall not (regardless either alone or upon the occurrence of whether enforceability is considered in a proceeding in equity additional acts or at lawevents) and (b) as would not, individually or in the aggregate, be reasonably expected to result in any payment or payments becoming due from TorreyPines, any TorreyPines Subsidiary, the Surviving Corporation or Axonyx or any Axonyx Subsidiary to any Person under any TorreyPines Contract or give any Person the right to terminate or alter the provisions of any TorreyPines Contract. No Person is renegotiating, or has a right pursuant to the terms of any TorreyPines Material Adverse Effect on ApexContract to renegotiate, any amount paid or payable to TorreyPines under any TorreyPines Material Contract or any other material term or provision of any TorreyPines Material Contract. Part 2.9 of the TorreyPines Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by TorreyPines (other than term sheets and proposals provided by TorreyPines or to TorreyPines by any party related to the subject matter of this transaction or an Acquisition Proposal made prior to the date hereof) that if entered into by TorreyPines or any TorreyPines Subsidiary would be a TorreyPines Material Contract.

Agreements, Contracts and Commitments. Neither Apex nor any of its subsidiaries is a party to or is bound by: (a) Except as set forth in Section 2.15 of the Disclosure Schedule (specifying the appropriate subparagraph), the Company is not a party to, nor is it bound by any employment of the following (each, a “Material Contract”): (i) any employment, contractor or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Apex's Board of Directorsindividual consultant, other than those contractor or salesperson, or consulting, services or sales agreement, contract, or commitment that are is not terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice the Company at will and without liability or financial obligation to Apexpenalty; (bii) any agreement or 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 (either alone or upon the occurrence of any additional subsequent events) 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 fidelity or surety bond or completion bond; (iv) any lease of personal property or equipment having a value in excess of $50,000 individually or $250,000 in the aggregate; (v) any agreement of indemnification or any guaranty other than any agreement guaranty, but excluding agreements of indemnification or guaranty with respect to the infringement by the Company products of the Intellectual Property Rights of third parties that are contained in the Company’s written agreements with its distributors and resellers that have been entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business, consistent with past practices, substantially in the Company’s standard form of distributor or reseller agreement; (dvi) any agreement, contract or commitment containing any covenant limiting relating to capital expenditures and involving future payments in any respect excess of $50,000 individually or $250,000 in the right of Apex or any of its subsidiaries to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsaggregate; (evii) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex of assets or any of its subsidiaries after the date of this Agreement of a material amount of assets not interest in any business enterprise outside the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporationthe Company’s business, partnership, joint venture or other business enterprise other than Apex's subsidiariesconsistent with past practices; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (iviii) any mortgages, indentures, guaranteesguaranties, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (jix) any settlement purchase order, contract or other commitment obligating the Company to purchase materials or services at a cost in excess of $50,000 individually or $250,000 in the aggregate; (x) any agreement containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition, “most favored nations,” restriction on the operation or scope of its businesses or operations, or similar terms; (xi) any agreement providing a customer with refund rights; (xii) any dealer, distribution, marketing, development or joint venture agreement which requires payment in excess of $50,000 individually or $250,000 in the aggregate; (xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, distributor, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company; (xiv) any contracts and licenses, including out-bound licenses with respect to the Company’s products, other than agreements with the Company’s distributors and resellers that have been entered into within five in the ordinary course of business, consistent with past practices, in the Company’s standard form of distributor or reseller contract (5as set forth in Exhibit F hereof); (xv) years prior any contracts, licenses and agreements to which the date Company is a party with respect to any Technology or Intellectual Property Rights (other than Shrink Wrap Code that is neither (A) incorporated into, or combined or distributed in conjunction with any Company Product, nor (B) used in connection with the development, support or maintenance of this Agreementany Company Product), including without limitation any in-bound licenses, out-bound licenses and cross-licenses; or (kxvi) any other agreement, contract or commitment that has a value of involves $1,000,000 50,000 individually or $250,000 in the aggregate or more individually. Neither Apex nor any and is not cancelable by the Company without penalty within ninety (90) days. (b) Except as set forth in Section 2.15(b)(i) of its subsidiariesthe Disclosure Schedule, nor to Apex's knowledge any other party to an Apex Contract (as defined below)the Company is in compliance in all material respects with, is (and has not materially breached, violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its subsidiaries has or received written notice that it has materially breached, violated or defaulted under, any of the material terms or conditions of any Material Contract, nor does the Company have any Knowledge of any event that would constitute such a material breach, violation or default with the lapse of time, giving of notice or both. Except as set forth in Section 2.15(b)(i) of the agreementsDisclosure Schedule, contracts or commitments to which Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex each Material Contract is in full force and effect, and the Company is a legalnot subject to any default thereunder, valid and binding obligation of Apex or a subsidiary of Apex and, nor to the knowledge of Apex, each Knowledge of the other parties theretoCompany is any party obligated to the Company pursuant to any such Material Contract subject to any default thereunder. There is no dispute regarding any Material Contract, enforceable or the performance of any Material Contract, including with respect to payments to be made or received by the Company thereunder. Except as set forth in accordance with its termsSection 2.15(b)(ii) of the Disclosure Schedule, except (a) that the enforcement thereof no Material Contract will terminate, or may be limited terminated by (i) bankruptcyeither party, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles solely by the passage of equity (regardless of whether enforceability is considered in a proceeding in equity time or at lawthe election of either party within one hundred twenty (120) days after the Closing. To the Knowledge of the Company, and (b) as would notafter due inquiry of the individuals set forth on Schedule 2.15(b)(iii), individually or in the aggregate, be reasonably expected no party to result in a Material Adverse Effect on ApexContract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise.

Agreements, Contracts and Commitments. Neither Apex nor any (a) Section 2.12(a) of its subsidiaries the Company Schedule sets forth all contracts specified in clauses (i) through (xvii) below (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company 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; (iii) any bonus, pension or retirement plans; (iv) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Apex's Board of Directors, other than those that are terminable by Apex or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Apex; (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 performance bond; (vii) any lease of real or personal property involving future payments in excess of $40,000 not cancelable by the Company without penalty of less than $40,000; (viii) any agreement of indemnification indemnification, guaranty or any guaranty other suretyship in an amount greater than any agreement of indemnification entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of business$40,000; (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries the Company to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (ex) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any capital expenditures in excess 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 Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiaries$40,000; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (gxi) 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 Apex and its subsidiaries taken as a whole; (h) any agreementarrangement, right, contract or commitment currently in force relating to license any third party to manufacture the future disposition or reproduce any Apex productacquisition of assets, service or technology properties or any agreement, contract or commitment currently interest in force to sell or distribute any Apex products, 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 Cybexenterprise; (ixii) any mortgagesmortgage, indenturesindenture, guarantees, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, other than Company credit cards with a credit limit of less than $10,000; (jxiii) any settlement agreement entered into within five (5) years 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; (xvii) any other agreement, contract or commitment that has a value involves or could result in aggregate payments to or by the Company of $1,000,000 25,000 or more individually. Neither Apex nor any of its subsidiariesand is not cancelable by the Company without penalty within thirty (30) days. (b) The Company has not materially breached, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (violated or with nothing more than notice and/or the passage of time will be) in breach, violation or default defaulted under, and neither Apex nor any of its subsidiaries has or received written notice that it has materially breached, violated or defaulted under, any of the material terms or conditions of any Material Contract. Except as set forth in Section 2.12(b) of the agreementsCompany Schedule, contracts or commitments to which Apex or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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 Apex each Material Contract is in full force and effect, effect and is a legalnot subject to any material breach, valid and binding obligation of Apex default or a subsidiary of Apex andviolation thereunder by the Company or, to the knowledge Shareholders’ Knowledge, by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of Apex, each of parties to any Material Contracts as are required to obtain in connection with the other parties thereto, enforceable in accordance with its terms, except transactions contemplated hereby and by the Ancillary Agreements (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apex“Requisite Consents”).

Agreements, Contracts and Commitments. Neither Apex nor Schedule 2.13 includes a list of all ------------------------------------- ------------- agreements, contracts and commitments, written or oral, to which Genius is a party or by which it is bound, excluding all agreements, contracts or commitments which pertain solely and exclusively to the portion of the Business which consists of the Retained Assets, including the following (provided, however, that no agreements, contracts or commitments representing liability in excess of DM 5.000 individually and DM 50.000 in the aggregate need to be so scheduled): 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, (collectively "BENEFIT ARRANGEMENTS"). Each Benefit Arrangement has been maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, laws, ordinances and regulations which are applicable to such Benefit Arrangements. No Benefit Arrangement has unfunded liabilities that, as of the Closing Date, will not be offset by insurance or fully accrued or reserved against in the Summary Financial Information. Except as required by law, no condition exists that would prevent Autodesk or any of its subsidiaries is a party to from amending or is bound by:terminating any Benefit Arrangement; (ac) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Apex's Board of Directorsemployee, other than those that are not terminable by Apex or any of its subsidiaries Genius on no more than thirty (30) days' or fewer days notice without liability or financial obligation liability, except to Apexthe extent general principles of wrongful termination law in the Federal Republic of Germany and other jurisdictions may limit Genius' ability to terminate employees at will; (bd) any agreement or plan, including, 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 Acquisition and the other 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 Acquisition and the other transactions contemplated by this Agreement; (ce) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of computer or communications hardware products in the ordinary course of businessbusiness other than such agreements or guarantees between Genius and any of its subsidiaries, officers or directors; (df) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Apex or any of its subsidiaries Genius to engage in any line of business, conduct business in any geographic area or to compete with any person or granting any exclusive distribution rightsperson; (eg) any outstanding agreement, contract or commitment relating to capital expenditures and involving future obligations; h) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Apex or any of its subsidiaries after the date of this Agreement of a material amount of assets Genius Assets not in the ordinary course of business or pursuant to which Apex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Apex's subsidiariesenterprise; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Apex or any 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, or any material agreement pursuant to which Apex or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Apex or any 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 that is material to Apex 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 Apex product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Apex products, 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 Cybex; (i) any 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 trade credit agreements entered into in the ordinary course of business; (j) any settlement agreement joint marketing or development agreements (excluding agreements with resellers, value added resellers or independent software vendors entered into within five in the ordinary course of business that do not permit such resellers or vendors to modify the Genius Products); k) any distribution agreement (5identifying any that contain exclusivity provisions), including distribution agreements involving Genius' subsidiary GCS Scandinavia AB; l) years any licenses, sublicenses, confidential disclosure, employee proprietary information agreements, or other agreements relating to patents, trademarks, copyrights, technical assistance, know-how, inventions, trade secrets, and similar intellectual property arrangements; m) any dealer, major account, sales, sales representative or marketing agreements, including those dealer agreements involving GCS Scandinavia AB; n) any lease for real or personal property; o) any authorized Training Center agreements; p) any agreement to purchase goods or services after the Closing or any agreement to purchase goods or services prior to the date Closing other than in the ordinary course of this Agreementbusiness; or (kq) any other agreementagreement to produce, contract market and sell products related to the Genius Products. Those agreements, contracts and commitments on Schedule 2.13 which are ------------- specifically designated (the "CONTRACTS") shall be assigned by Genius to Autodesk at the Closing effective upon receipt of whatever third party consents or commitment approvals as may be required under the terms of such agreements, contracts or commitments. Except for such (i) breaches, violations and defaults, (ii) alleged breaches, violations and defaults, and (iii) events that has would constitute a value of $1,000,000 or more individually. Neither Apex nor any of its subsidiaries, nor to Apex's knowledge any other party to an Apex Contract (as defined below), is (or with nothing more than notice and/or the passage of time will be) in breach, violation or default with the lapse of time, the giving of notice, or both, which are noted in Schedule 2.13 or which reasonably would not be expected ------------- to have a Material Adverse Effect, Genius has not breached, violated or defaulted under, and neither Apex nor any of its 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 Apex or any of its subsidiaries is a party or by which it is bound that are Contract required to be disclosed set forth in the Apex Schedules (any such agreement, contract or commitment, a "APEX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Apex 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)Schedule 2.13. Each Apex Contract is in full force and effect, and is a legal, valid and binding obligation of Apex or a subsidiary of Apex effect and, except as ------------- otherwise disclosed in Schedule 2.13, is not subject to any default thereunder ------------- of which Genius has knowledge by any party obligated to Genius pursuant thereto. Genius has obtained, or will use its best efforts to obtain with the reasonable assistance and cooperation of Autodesk prior to the knowledge Closing Date, all necessary consents, waivers and approvals of Apexparties to or affected by any Contract as are required to assign all rights, each interests and benefits thereunder to Autodesk as of the Closing. Genius has marked in a manner which specifically indicates each Contract requiring consent, waiver or approval by a contracting party other parties theretothan Genius in order that any rights, enforceable interests or benefits thereunder can be assigned to Autodesk in accordance with its terms, except (a) that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles requirements of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and (b) as would not, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect on Apexthis Agreement.