Common use of Agreements, Contracts and Commitments Clause in Contracts

Agreements, Contracts and Commitments. As of the date hereof, neither Company nor any of its subsidiaries is a party to or is bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (

Agreements, Contracts and Commitments. As of Except as set forth in the date hereofCompany Schedules, neither the Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company 's or any of its subsidiaries subsidiaries' ability to make any payments as a result of terminate employees at will and except for potential liabilities for future actions by 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 paythe extent covered by the WARN Act; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan, stock purchase plan or restricted stock purchase planagreement, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in the ordinary course of officers, directors or employees of business other than indemnification agreements between the Company or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount portion of the assets not in of the ordinary course of business Company and its subsidiaries or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;enterprise; or (f) any material joint marketing or development agreement. Neither the Company nor any of its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), 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 any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound of the type described in clauses (a) through (f) above (any such agreement, contract or commitment, as well as any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating that is an exhibit to any claim or suit; (iCompany SEC Report, a "COMPANY CONTRACT") any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by in such users) or (ii) revenues generated by purchases on any such website; or (a manner as would

Agreements, Contracts and Commitments. As of Except as otherwise set forth in the date hereofLaunch Disclosure Schedules, neither Company Launch nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyLaunch's Board of Directors, other than those that are terminable by Company Launch or any of its subsidiaries on no more than thirty (30) 30 days' notice without liability or financial obligation obligation, except to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation the extent general principles of Company wrongful termination law may limit Launch's or any of its subsidiaries subsidiaries' ability to make terminate employees at will, or 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 payconsulting 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 outside the ordinary course of officers, directors or employees of Company Launch's business or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Companyguaranty; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Launch or any of its subsidiaries or a Joint Venture to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Launch or any of its subsidiaries or a Joint Venture after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Launch has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than CompanyLaunch's subsidiariessubsidiaries or a Joint Venture; (f) any licensing, distribution, sponsorship, advertising, merchant program, encoding services, hosting or other similar agreement to which Launch or one of its subsidiaries or a Joint Venture is a party which may not be canceled by Launch or its subsidiaries or a Joint Venture, as the case may be, without penalty in excess of $10,000 upon notice of 30 days or less or which provides for payments by Launch or its subsidiaries or a Joint Venture in an amount in excess of $10,000 over the term of the agreement or to Launch or its subsidiaries or a Joint Venture in an amount in excess of $100,000 over the term of the agreement; (g) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which Company has agreed not license or provide source code to purchase the goods (other than local grocery products) any third party for any product or services of, or enter into a commercial relationship with, another person; (g) 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;technology; or (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any other agreement, contract or commitment obligating Company currently in effect that is material to make Launch's business as presently conducted. Neither Launch nor any payments based on of its subsidiaries, nor to Launch's knowledge any Joint Venture or any other party to a Launch Contract (ias defined below), is in breach, violation or default under, and neither Launch nor any of its subsidiaries nor, to the knowledge of Launch, any Joint Venture has received written notice (or to its knowledge, any other form of notice) that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by Company of the agreements, contracts or commitments to which Launch or any of its subsidiaries or a Joint Venture is a party or by which it is bound that are required to be disclosed in the Launch Disclosure Schedules pursuant to clauses (whether measured by registrations, click-throughs a) through (h) above or purchases by such users) or pursuant to Section 3.9 hereof (ii) revenues generated by purchases on any such website; agreement, contract or (commitment, a "LAUNCH CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Launch Contract or seek damages or other remedies the effect of which would have a Material Adverse Effect on Launch.

Agreements, Contracts and Commitments. As of the date hereof, neither Neither Company nor any of its material subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company 's or any of its subsidiaries subsidiaries' ability 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 payterminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations software products in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company or any of its material subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any material agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (f) any agreementmaterial joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, contract technology or commitment containing exclusivity provisions service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which Company has agreed or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not to purchase the goods (other than local grocery products) be owned, in whole or services ofin part, by Company or enter into a commercial relationship with, another personany of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; or (h) any agreement, contract or commitment currently in force to make license any payments based on third party to manufacture or reproduce any Company product, service or technology except as a distributor in the normal course of business. Neither Company nor any of its material subsidiaries, nor to Company's knowledge any other party to a Company Contract (i) as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedules pursuant to clauses (whether measured by registrations, click-throughs a) through (h) above or purchases by such users) or pursuant to Section 2.9 hereof (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of Except as set forth on Schedule 3.12(a) or in the date hereof, neither Company nor any ordinary course of its subsidiaries business, Healtheon does not have, is not a party to or nor is it bound by: (i) any collective bargaining agreements, (ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, (iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, (iv) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directors, other than those that are terminable by Company individual consultant or salesperson or any of its subsidiaries on no more than thirty (30) days' notice without liability consulting or financial obligation to Company, (ii) any such sales agreement, contract or commitment with under which any employee, consultant, shareholder firm or other person that will result in any obligation of Company or any of its subsidiaries organization provides services 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;Healtheon, (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 of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company;guaranty, (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company or any of its subsidiaries Healtheon to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rights;person, (ex) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;$25,000, (fxi) any agreement, contract or commitment containing exclusivity provisions pursuant relating to which Company has agreed not to purchase the goods (other than local grocery products) disposition or services of, acquisition of assets or enter into a commercial relationship with, another person;any interest in any business enterprise, (gxii) 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, (hxiii) any settlement purchase order or contract for the purchase of raw materials involving $25,000 or more, (xiv) any construction contracts, (xv) any distribution, joint marketing or development agreement, (xvi) any agreement relating pursuant to which Healtheon has granted or may grant in the future, to any claim party, a source-code license or suit;option or other right to use or acquire source-code, or (ixvii) any real property lease covering other agreement, contract or commitment that involves $25,000 or more than 20,000 square feet; or is not cancelable without penalty within thirty (j30) days. 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, as are all noted in Schedule 3.12(b),Healtheon has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment obligating Company required to make any payments based be set forth on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such usersSchedule 3.12(a) or Schedule 3.11(b) (ii) revenues generated by purchases on any such website; agreement, contract or (commitment, a "HEALTHEON CONTRACT"). Each Healtheon Contract is in full force and effect and, except as otherwise disclosed in Schedule 3.12(b), is not subject to any default thereunder of which Healtheon has knowledge by any party obligated to Healtheon pursuant thereto.

Agreements, Contracts and Commitments. As of the date hereof, neither Neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level officer, director, Company employee currently earning an annual salary in excess of (U.S.) $55,000 or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock shares appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any material agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations software products in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any material agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which 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 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 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 containing exclusivity provisions pursuant currently in force to which provide source code to any third party for any product or technology that is material to Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into and its subsidiaries taken as a commercial relationship with, another personwhole; (gh) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other written agreements or instruments relating to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment obligating that has a value of (U.S.) $22,000 or more individually. Neither Company nor any of its subsidiaries, nor to make Company's knowledge any payments based on other party to a Company Contract (i) as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as otherwise set forth in Part 2.16 of the Company Schedules, as of the date hereof, hereof neither the Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company 's or any of its subsidiaries subsidiaries' ability 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 payterminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant materially limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (ec) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the 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 the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's subsidiariessubsidiaries that is material to the Company's business as currently conducted; (fd) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a whole; or Neither the Company nor any of its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither the Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedules pursuant to clauses (whether measured by registrations, click-throughs a) through (d) above or purchases by such users) pursuant to Section 2.9 hereof or are required to be filed with any Company SEC Report (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of Except as set forth on the date hereofCompany Disclosure Schedule, neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or executive officer, director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty days notice and which do so with no express (30whether by contract or by policy) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase planplan (except for those described in Section 2.3 of the Company Disclosure Schedule), any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty currently in force other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license or distribution or marketing of obligations products or services in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rightsbusiness; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; ; Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (f) as defined below), is in breach, violation or default under, and neither Company nor any agreementof its subsidiaries has received written notice that it has breached, contract violated or commitment containing exclusivity provisions pursuant defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Disclosure Schedule pursuant to this Section 2.19 (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of (a) Neither the date hereof, neither Company nor any of its subsidiaries Subsidiaries is a party to or is bound by: (i) any written employment or consulting agreement, contract or commitment with any officer or director or higher level employee officer, director, Employee or member of Company's Board of Directorsthe Company Boards, or any service, operating or management agreement, other than those that are terminable by the Company or any of its subsidiaries Subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of the 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 paySubsidiaries; (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; (cii) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with a Lease in respect of real property not situated in Israel for the benefit of the landlord and its mortgage or in connection with the sale of obligations products in the ordinary course of officers, directors, employees or agents of business consistent with past practice pursuant to the Company's standard form agreement previously delivered by the Company to the Buyer; (diii) any agreement, contract or commitment material Contract containing any covenant limiting in any respect the right of the Company or any of its subsidiaries Subsidiaries to engage in any line of business in any geographic area or to compete with any person or entity or granting to any person any interest in Company's exclusive distribution rights; (eiv) any agreement, contract or commitment Contract currently in force relating to the disposition or acquisition by the Company 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 the Company or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Subsidiaries of the Company's subsidiaries; (fv) any agreementdealer, contract distributor, joint marketing or commitment containing exclusivity provisions development Contract currently in force under which the 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 the Company has agreed or any of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not to purchase be owned, in whole or in part, by the goods Company or any of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (other than local grocery products90) days or services of, or enter into a commercial relationship with, another personless; (gvi) any Contract currently in force to license any third party to manufacture or reproduce any product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell or distribute any products, service or technology of the Company or any of its Subsidiaries except agreements with distributors or sales representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to the Buyer; (vii) any Contract currently in force to provide source code or design specifications to any third party for any product or technology that is material to the Company and its Subsidiaries taken as a whole; (viii) any mortgages, indentures, guarantees, other Encumbrances, loans or credit agreements, security agreements or other agreements or instruments relating to to, or securing, the borrowing of money or extension of creditcredit (other than mortgages made by a landlord under a Lease to which mortgage the Company is not a party but the Lease may be subject); (hix) any material settlement agreement relating to any claim or suit;under which the Company has ongoing obligations. (ib) any real property lease covering more Other than 20,000 square feet; (j) any agreementLeases, contract or commitment obligating neither the Company to make any payments based on (i) the number of users accessing any website operated by Company or nor any of its subsidiaries Subsidiaries nor, to the Company's knowledge, any other party to a Company Contract, is in breach, violation or default under, and neither the 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 Company Contract in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate), subject to the representations and warranties contained in Section 3.13, including without limitation, Section 3.13(c). The Company has made available to the Buyer true and correct copies of any Contracts (excluding purchase orders) the Company and its Subsidiaries may have with its top ten customers measured by revenue. (c) Neither the Company nor any of its Subsidiaries is restricted by agreement from carrying on its business anywhere in the world. (d) Neither the Company nor any of its Subsidiaries has any power of attorney outstanding or any obligations or liabilities (whether measured by registrationsabsolute, clickaccrued, contingent or otherwise), as guarantor, surety, co-throughs signer, endorser, co-maker, indemnitor or purchases by such users) otherwise in respect of the obligation of any Person, corporation, partnership, joint venture, association, organization or (ii) revenues generated by purchases on any such website; or (other entity.

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

Agreements, Contracts and Commitments. As Except as set forth in Section 2.16 and Section 2.2(b) of the date hereofCompany Disclosure Letter, neither the Company nor any of its subsidiaries is not a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's ’s Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination payobligation; (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 guaranty not entered into in the ordinary course of officers, directors business other than indemnification agreements between the Company and any of its officers or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;enterprise; or (f) any material joint marketing or development agreement. The Company, or to the Company’s knowledge any other party to a Company Contract (as defined herein), 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 any of the agreements, contracts or commitments to which the Company is a party or by which it is bound of the type described in clauses (a) through (f) above (any such agreement, contract or commitment containing exclusivity provisions pursuant commitment, a “COMPANY CONTRACT”) in such a manner as would permit any other party to which cancel or terminate any such Company has agreed not to purchase the goods (other than local grocery products) or services ofContract, or enter into a commercial relationship withwould permit any other party to seek damages, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating which would be reasonably likely to be material to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (Company.

Agreements, Contracts and Commitments. As Except as set forth in Section 2.18 of the date hereofCompany Disclosure Letter, neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level officer, director, Company employee or member of Company's Board of Directors, or any service, operating or management agreement or arrangement with respect to any of its properties (whether leased or owned) other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations products or services in or the licensing of officers, directors, employees or agents real property in the ordinary course of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which 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 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 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 containing exclusivity provisions pursuant currently in force to which license any third party to manufacture or reproduce any Company has agreed not product, service or technology or any agreement, contract or commitment currently in force to purchase sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the goods normal course of business cancelable without penalty upon notice of ninety (other than local grocery products90) days or services of, or enter into a commercial relationship with, another personless and substantially in the form previously provided to Parent; (gh) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more credit other than 20,000 square feettrade payables incurred in the ordinary course of business; (j) any material settlement agreement under which the Company has ongoing obligations; or (k) any other agreement, contract or commitment obligating involving in excess of $100,000 being paid by or to Company over the term thereof. Neither Company nor any of its subsidiaries, nor to make Company's knowledge any payments based on other party to a Company Contract (i) as defined below), is in material breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Disclosure Letter (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate). Company has made available to Parent true and correct copies of any contracts between Company and its top ten customers.

Agreements, Contracts and Commitments. As of (a) Except as set forth on SCHEDULE 2.12(a), the date hereofCompany does not have, neither Company nor any of its subsidiaries is not a party to or and is not bound by: (i) 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 (excluding "at will" employee relationships) with any officer or director or higher level an employee or member of Company's Board of Directors, other than those that are terminable by Company individual consultant or salesperson or any of its subsidiaries on no more than thirty (30) days' notice without liability consulting or financial obligation to Company, (ii) any such sales agreement, contract or commitment with under which any employee, consultant, shareholder firm or other person that will result in any obligation of Company or any of its subsidiaries organization provides services 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;Company, (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 $50,000, (viii) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company;guaranty, (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rights;person, (ex) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;$50,000, (fxi) any agreement, contract or commitment containing exclusivity provisions pursuant relating to which Company has agreed not to purchase the goods (other than local grocery products) disposition or services of, acquisition of assets or enter into a commercial relationship with, another person;any interest in any business enterprise outside the ordinary course of the Company's business, (gxii) 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, (hxiii) any settlement purchase order or contract for the purchase of raw materials involving $50,000 or more, (xiv) any construction contracts, (xv) any distribution, joint marketing or development agreement, (xvi) any agreement relating pursuant to which the Company has granted or may grant in the future, to any claim party, a source-code license or suit;option or other right to use or acquire source-code, or (ixvii) any real property lease covering other agreement, contract or commitment that involves $50,000 or more than 20,000 square feet;or is not cancelable without penalty within thirty (30) days. (jb) 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, as are all noted in SCHEDULE 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any End-User License or any agreement, contract or commitment obligating Company required to make any payments based be set forth on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such usersSCHEDULE 2.12(a) or SCHEDULE 2.11(b) (ii) revenues generated by purchases on any such website; agreement, contract or (commitment, a "CONTRACT"). Each Contract is in full force and effect 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. Following the Effective Time, the Company will be permitted to exercise all of the Company's rights under the 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 had the transactions contemplated by this Agreement not occurred.

Agreements, Contracts and Commitments. As of Except as set forth in the date hereofCompany Schedules, neither the Company nor any of its subsidiaries is a party to or is bound by: : (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company 's or any of its subsidiaries subsidiaries' ability to make any payments as a result of the transactions contemplated hereby, terminate employees at will; (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; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan, stock purchase plan or restricted stock purchase planagreement, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; ; (ciii) any agreement of indemnification or guaranty not entered into in the ordinary course of officers, directors or employees of business other than indemnification agreements between the Company or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; ; (div) any agreement, contract or commitment containing any covenant limiting in any respect prohibiting or materially impairing conduct of the right of business by the Company or any of its subsidiaries (as currently conducted or as presently proposed to engage in any line of business in any geographic area be conducted by the Company or to compete with any person its subsidiaries) or granting to any person any interest in Company's exclusive distribution rights; ; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than enterprise; or (vi) any material joint marketing or development agreement. Neither the Company nor any of its subsidiaries, nor to the Company's subsidiaries; knowledge any other party to a Company Contract (fas defined below), 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 any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound of the type described in clauses (i) through (vi) above (any such agreement, contract or commitment, as well as any agreement, contract or commitment containing exclusivity provisions pursuant that is an exhibit to which any Company has agreed not SEC Report, a "COMPANY CONTRACT") in such a manner as would permit any other party to purchase the goods (other than local grocery products) cancel or services ofterminate any such Company Contract, or enter into would be reasonably likely to have a commercial relationship with, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to Material Adverse Effect on the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (Company.

Agreements, Contracts and Commitments. As of the date hereof, neither Neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or officer, director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty days notice and which do so with no express (30whether by contract or by policy) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty currently in force other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license or distribution or marketing of obligations products or services in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (f) any agreementmaterial joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, contract technology or commitment containing exclusivity provisions service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which Company has agreed or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not to purchase the goods (other than local grocery products) be owned, in whole or services ofin part, by Company or enter into a commercial relationship with, another personany of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating currently in force to provide any Company Intellectual Property to make any payments based on third party for any product or technology that is material to Company and its subsidiaries taken as a whole; or (ih) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology except as a distributor in the number normal course of users accessing business. Neither Company nor any website operated by of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Disclosure Letter pursuant to this Section 2.19 (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as disclosed in Section 4.25 of the date hereofCompany Disclosure Schedule, neither the Company nor any of its subsidiaries is not a party to or is bound byto: (ia) any employment bonus, deferred compensation, pension, severance, profit- sharing, stock option, employee stock purchase or consulting agreementretirement plan, contract or commitment with any officer arrangement or director other employee benefit plan or higher level employee or member of other arrangement covering the Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination payemployees; (b) any employment agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, with any of the benefits of which will be increased, Company's employees that contains any severance pay liabilities 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 Agreementobligations; (c) any agreement for personal services or employment with any of indemnification of officers, directors the Company's employees that is not terminable on 30 days' (or employees of less) notice by the Company without penalty or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Companyobligation to make payments related to such termination; (d) any agreement, contract agreement of guarantee or indemnification in an amount that is material to the Company; (e) any agreement or commitment containing any a covenant limiting or purporting to limit the freedom of the Company to compete with any person in any respect the right of Company geographic area or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiariesbusiness; (f) any agreement, contract or commitment containing exclusivity provisions pursuant lease to which the Company has agreed not to purchase the goods is a party as lessor or lessee that (other than local grocery productsx) provides for future payments of $10,000 or services ofmore, or enter into a commercial relationship with, another person(y) is material to the conduct of the business of the Company; (g) any mortgages, indentures, guarantees, loans joint venture agreement or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditprofit-sharing agreement; (h) except for trade indebtedness incurred in the ordinary course of business, any settlement agreement relating loan or credit agreements providing for the extension of credit to the Company or any claim instrument evidencing or suitrelated in any way to indebtedness incurred in the acquisition of companies or other entities or indebtedness for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, or otherwise that individually is in the amount of $5,000 or more; (i) any real property lease covering more than 20,000 square feetlicense agreement, either as licensor or licensee, or distributor, dealer, franchise, manufacturer's representative, sales agency or other similar agreement or commitment; (j) any agreementagreement or arrangement for the assignment, sale or other transfer by the Company of any agreement or lease (or right to payment thereunder) by which it leases materials, products or other property to a third party; (k) any contract or agreement that provides any discount other than pursuant to the Company's standard discount terms; (l) any agreement or commitment obligating Company for the acquisition, construction or sale of fixed assets owned or to make be owned by the Company; (m) any payments based on (i) current agreement or commitment, not elsewhere specifically disclosed pursuant to this Agreement, to which present or former directors, officers or Affiliates of the number of users accessing any website operated by Company or any of its subsidiaries their "ASSOCIATES" (whether measured by registrationsas defined in the rules and regulations promulgated under the Securities Act) are parties; (n) any agreement or arrangement for the sale of any of the assets, click-throughs properties or purchases by such usersrights of the Company (other than in the ordinary course of business) or for the grant of any preferential rights to purchase any of its assets, properties or rights or any material agreement that requires the consent of any third party to the transfer and assignment of any of its assets, properties or rights; (iio) any contract providing for the payment of a commission or other fee calculated as or by reference to the volume of web traffic or a percentage of the profits or revenues generated of the Company or of any business segment of the Company; (p) any contract or agreement not described above involving the payment or receipt by purchases the Company of more than $25,000, or, in the case of contracts involving payments by the Company, which cannot be terminated by it on 30 days' notice without penalty, cost or liability; or (q) any such websitecontract or agreement not described above that is material to the business, operations, assets, financial condition, results of operations, properties or prospects of the Company, including without limitation, agreements relating to web site development and operations; or (marketing, promotion, affiliate and advertising, including search engine referrals and Internet private labeling; fulfillment operations; and telephone, credit card and freight carrier services.

Agreements, Contracts and Commitments. As of the date hereofof this Agreement, except as set forth in Section 2.18 of the Company Schedule, neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director employee of Company or higher level employee any of its subsidiaries or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without material liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty pursuant to which Company may have liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of third party indebtedness $100,000, other than any agreement of indemnification entered into in connection with the sale of products or license of obligations technology in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement under which Company or any of its subsidiaries have continuing obligations to jointly market any product, technology or service and which may not be canceled without material penalty upon notice of ninety (90) days or less, or any agreement pursuant to which Company or any of its subsidiaries have continuing obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without material penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment containing exclusivity provisions pursuant to which provide source code to any third party for any product or technology that is material to Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into and its subsidiaries taken as a commercial relationship with, another personwhole; (gh) any agreement, contract or commitment to license any third party to manufacture or reproduce any Company Product or any agreement, contract or commitment to sell or distribute any Company Products except agreements with distributors or sales representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Company or any of its subsidiaries or extension of credit; credit (h) other than customer accounts receivable owing to Company or any settlement agreement relating to any claim of its subsidiaries created in the ordinary course of business and payable or suit; (i) any real property lease covering more than 20,000 square feetdischargeable in accordance with customary trade terms); (j) any material settlement agreement under which Company or any of its subsidiaries has ongoing obligations; (k) any agreement, contract or commitment obligating under which Company is committed to make provide products or services at a later date at a fixed price; (l) any payments based on (i) other agreement, contract or commitment not otherwise disclosed in Section 2.18 of the number of users accessing any website operated Company Schedule that calls for the payment by Company or any of its subsidiaries of $100,000 or more in any calendar year; (whether measured m) any agreement not otherwise disclosed in Section 2.18 of the Company Schedule under which the consequences of a default could reasonably be expected to have a Material Adverse Effect on Company and its subsidiaries, taken as a whole; or (n) any other agreement, contract or commitment that is of the nature required to be filed by registrationsCompany as an exhibit to an Annual Report on Form 10-K under the Exchange Act. Company has delivered or made available to Parent a correct and complete copy of each Company Contract (as defined below) as amended through the date of this Agreement. Each Company Contract, click-throughs or purchases by such users) or (ii) revenues generated by purchases on with respect to Company and any relevant subsidiary and, to Company's knowledge, all other parties thereto, is legal, valid, binding, enforceable and in full force and effect in all respects, except to the extent that any such website; invalidity would not reasonably be expected to be material to Company. Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract, is in breach, violation or default under a Company Contract. Neither Company nor any of its subsidiaries has received written notice within the last twelve months that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule pursuant to this Section 2.18 (any such agreement, contract or commitment, a ("COMPANY CONTRACT")) in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of Except as set forth in the date hereofNathan's Schedules, neither Company Nathan's nor any of its subsidiaries is a party to or is bound by: (ia) any collective bargaining agreements; (b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (c) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directorsemployee, other than those that are not terminable by Company Nathan's or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation liability, except to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation the extent general principles of Company wrongful termination law may limit Nathan's or any of its subsidiaries subsidiaries' ability 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 payterminate 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 guaranty not entered into in the ordinary course of officers, directors or employees of Company business other than indemnification agreements between Nathan's or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; (df) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company Nathan's or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rightsperson; (eg) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty; (h) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiariesenterprise; (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (gi) 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; (hj) any settlement agreement relating to any claim joint marketing or suitdevelopment agreement; (ik) any real property lease covering more than 20,000 square feet;distribution agreement (identifying any that contain exclusivity provisions); or (jl) any other agreement, contract or commitment obligating Company to make any payments based on (iexcluding real and personal property leases) the number of users accessing any website operated which involves payment by Company Nathan's or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on under any such website; agreement, contract or commitment of $100,000 or more in the aggregate and is not cancelable without penalty within thirty (30) days.

Agreements, Contracts and Commitments. As of the date hereof, neither Company nor any of its subsidiaries is a party to or is bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyParent's Board of Directors, other than those that are terminable by Company Parent or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to CompanyParent, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder stockholder or other person that will result in any obligation of Company Parent or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder stockholder of Company Parent pursuant to which Company Parent has loaned or is obligated to loan any money thereto or (iv) any arrangement or agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company Parent or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of CompanyParent; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Parent or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in CompanyParent's distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Parent 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 Company Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than CompanyParent's subsidiaries; (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company Parent has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; ; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company Parent to make any payments based on (i) the number of users accessing any website operated by Company Parent or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (k) any other agreement, contract or commitment that involves remaining obligations of Parent of $5,000,000 or more individually. Neither Parent nor any of its subsidiaries, nor to Parent's knowledge any other party to a Parent Contract (as defined below), is in breach, violation or default under, and neither Parent nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Parent or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Parent Schedules (any such agreement, contract or commitment, a "Parent Contract") in such a manner as would permit any other party to cancel or terminate any such Parent Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of Except as otherwise set forth in the date hereofLaunch Disclosure Schedules, neither Company Launch nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyLaunch's Board of Directors, other than those that are terminable by Company Launch or any of its subsidiaries on no more than thirty (30) 30 days' notice without liability or financial obligation obligation, except to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation the extent general principles of Company wrongful termination law may limit Launch's or any of its subsidiaries subsidiaries' ability to make terminate employees at will, or 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 payconsulting 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 outside the ordinary course of officers, directors or employees of Company Launch's business or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Companyguaranty; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Launch or any of its subsidiaries or a Joint Venture to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Launch or any of its subsidiaries or a Joint Venture after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company Launch has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than CompanyLaunch's subsidiariessubsidiaries or a Joint Venture; (f) any licensing, distribution, sponsorship, advertising, merchant program, encoding services, hosting or other similar agreement to which Launch or one of its subsidiaries or a Joint Venture is a party which may not be canceled by Launch or its subsidiaries or a Joint Venture, as the case may be, without penalty in excess of $10,000 upon notice of 30 days or less or which provides for payments by Launch or its subsidiaries or a Joint Venture in an amount in excess of $10,000 over the term of the agreement or to Launch or its subsidiaries or a Joint Venture in an amount in excess of $100,000 over the term of the agreement; (g) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which Company has agreed not license or provide source code to purchase the goods (other than local grocery products) any third party for any product or services of, or enter into a commercial relationship with, another person; (g) 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;technology; or (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any other agreement, contract or commitment obligating Company currently in effect that is material to make Launch's business as presently conducted. Neither Launch nor any payments based on of its subsidiaries, nor to Launch's knowledge any Joint Venture or any other party to a Launch Contract (ias defined below), is in breach, violation or default under, and neither Launch nor any of its subsidiaries nor, to the knowledge of Launch, any Joint Venture has received written notice (or to its knowledge, any other form of notice) that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by Company of the agreements, contracts or commitments to which Launch or any of its subsidiaries or a Joint Venture is a party or by which it is bound that are required to be disclosed in the Launch Disclosure Schedules pursuant to clauses (whether measured by registrations, click-throughs a) through (h) above or purchases by such users) or pursuant to Section 3.9 hereof (ii) revenues generated by purchases on any such website; agreement, contract or (commitment, a "Launch Contract") in such a manner as would permit any other party to cancel or terminate any such Launch Contract or seek damages or other remedies the effect of which would have a Material Adverse Effect on Launch.

Agreements, Contracts and Commitments. As of Except as set forth on ------------------------------------- Schedule 2.16(a), the date hereofCompany does not have, neither Company nor any of its subsidiaries is not a party to or nor is it bound ---------------- by: (ia) any collective bargaining agreements, (b) any employment or consulting agreement, contract or commitment with any officer or director or higher level officer, director, employee or member of the Company's Board of Directors, other than those that are terminable by the Company without liability of financial obligation of the Company, (c) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any of its subsidiaries on no more than thirty other employee benefit plans or arrangements, (30) days' notice without liability or financial obligation to Company, (iid) any such employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with any employee, consultant, shareholder under which a firm or other person that will result in any obligation of Company or any of its subsidiaries organization provides services 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;Company, (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, or under which payments are required to be made 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 $50,000, (h) any agreement of indemnification or guaranty, except for indemnification or guarantees provided in the ordinary course of officers, directors or employees business in connection with the sale of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of the Company;'s products as set forth on Schedule 2.15, (di) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights;, (ej) any agreement relating to capital expenditures and involving future payments in excess of $100,000, (k) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;enterprise, (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (gl) 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, (hm) any purchase order or contract involving the expenditure by the Company of $200,000 or more for the Company's products or $100,000 or more or otherwise, (n) any construction contracts, (o) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant agreement, (p) any agreement pursuant to which the Company has granted or may be obligated to grant in the future, to any party a source code license or option or other right to use or acquire source code, including any agreements which provide for source code escrow arrangements, (q) any sales representative, original equipment manufacturer, value added, remarketer or other agreement for distribution of the Company's products or services or the products or services of any other person or entity, (r) 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 other than business travel advances in the ordinary course of business consistent with past practice, (s) any settlement agreement relating to any claim or suit;entered into since the Company's initial incorporation, or (it) any real property lease covering other agreement that involves $100,000 or more than 20,000 square feet; or is not cancelable without penalty within thirty (j30) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (days.

Agreements, Contracts and Commitments. As (a) Except as set forth on Section 4.19(a) of the date hereofSeller Disclosure Letter, neither the Company nor any of its subsidiaries is a party to or is bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's ’s Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days' ’ notice without liability or financial obligation to the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Termination Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement or the Termination Agreement; (ciii) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale, license, distribution, reselling or other transfer of obligations software products in the ordinary course of officers, directors, employees business or agents in connection with the provision of Companyservices in the ordinary course of business; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business in presently conducted by the Company or any geographic area subsidiary, or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the 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 the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's ’s subsidiaries; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which the 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 sixty (60) days or less, or any material agreement pursuant to which the 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 Seller or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less; (vii) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which provide source code to any third party for any product or technology that is material to the Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into and its subsidiaries taken as a commercial relationship with, another personwhole; (gviii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Products, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon written notice of ninety (90) days or less; (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; (hx) any material settlement agreement relating entered into within three (3) years prior to any claim or suit;the date of this Agreement; or (ixi) any real property lease covering more than 20,000 square feet; (j) any other material agreement, contract or commitment obligating currently in force that is outside the ordinary course of business or that has a value of $50,000 or more within a twelve (12) month period in any individual case. (b) Neither the Company nor any of its subsidiaries, nor to make Seller’s knowledge any payments based on other party to a Company Contract (i) as defined below), is in breach, violation or default under, and neither the number Company nor any of users accessing its subsidiaries has received written notice that it has breached, violated or defaulted under, any website operated by of the terms or conditions of any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound that are required to be set forth in the Seller Disclosure Letter (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a “Company Contract”) in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as set forth on ------------------------------------- Schedule 2.12, as of the date hereof, neither the Company nor any of its subsidiaries is not a party to or is bound by: (ia) any collective bargaining agreements, (b) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations other than reasonable notice provisions of common law, (c) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans, policies or arrangements, (d) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directors, other than those that are terminable by Company individual consultant or any of its subsidiaries on no more than thirty (30) days' notice without liability salesperson or financial obligation to Company, (ii) any such consulting or sales agreement, contract or commitment with any employee, consultant, shareholder a firm 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;organization, (be) any agreement or plan, including, without limitation, including any stock Shares option plan, stock Shares appreciation right plan or stock rights plan, Shares purchase plan, or employee share option scheme, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;, (cf) any fidelity or surety bond or completion bond, (g) any lease of personal property having a value individually in excess of $10,000, (h) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company;guaranty, (di) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rights;entity, (ej) any agreement, contract or commitment currently in force relating to capital expenditures and involving future payments in excess of $10,000, except as disclosed in Note 10 to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;Financials, (fk) any agreement, contract or commitment containing exclusivity provisions pursuant relating to which Company has agreed not to purchase the goods (other than local grocery products) disposition or services of, acquisition of assets or enter into a commercial relationship with, another person;any interest in any business enterprise outside the ordinary course of the Company's business, (gl) any mortgages, charges, 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, (m) any settlement purchase order or contract for the purchase of raw materials involving $10,000 or more, (n) any construction contracts, (o) any distribution, joint marketing or development agreement, (p) any agreement relating pursuant to which the Company has granted or may grant in the future, to any claim party, a source-code license or suit;option or other right to use or acquire source codes, or (iq) any real property lease covering other agreement, contract or commitment that involves $10,000 or more than 20,000 square feet; or is not cancelable without penalty within thirty (j30) days. Except for 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, as are all noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment obligating to which the Company is a party or by which it is bound (any agreement, contract or commitment, a "Contract"). Each Contract is in full -------- force and effect and, except as otherwise disclosed in Schedule 2.12(b), is not subject to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (default thereunder.

Agreements, Contracts and Commitments. As (a) List of Contracts. Part 4.11(a) of the Disclosure Schedule identifies, in each subpart that corresponds to the subsection listed below, any Contract entered into up to the date hereof, neither (x) to which any Acquired Company nor or a Selling Shareholder (with respect to clause (xiii) hereunder) is a party, (y) by which any of its subsidiaries the Acquired Companies or any of their assets is a party to or is may become bound byor under which any Acquired Company has, or may become subject to, any obligation, or (z) under which any Acquired Company has or may acquire any right or interest: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member one of the Acquired Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, ’s customers; (ii) pursuant to which any such agreementAcquired Company has been appointed a partner, contract reseller 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, distributor; (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which any Acquired Company has loaned appointed another Person as a partner, reseller, or is obligated to loan any money thereto or distributor; (iv) that is with any agreement Acquired Company’s suppliers by spending during the last calendar year or arrangement providing for severance or termination paythe first 3 months of the current calendar year; (bv) imposing any agreement restriction on the right 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 ability of any of the transactions contemplated by this Agreement Acquired Company: (A) to compete with any other Person; (B) to acquire any product or the value of other asset or any of the benefits of which will be calculated on the basis of services from any of the transactions contemplated by this Agreementother Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person; or (C) to develop or distribute any technology; (cvi) that is an Acquired Company Employee Plan or an Acquired Company Employee Agreement, including all indemnification agreements with current or former officers or directors; (vii) relating to the acquisition, transfer, use, development, sharing or license of any agreement Intellectual Property or Intellectual Property Right, together with (A) the Intellectual Property or Intellectual Property Right that is the subject of indemnification such Contract; (B) whether the Intellectual Property or Intellectual Property Right is being licensed to or acquired by any Acquired Company, or licensed to or acquired by another Person; and (C) the product or service of officersthe applicable Acquired Company to which such Intellectual Property or Intellectual Property Right relates (other than (x) Open Source Licenses listed in Part 4.10(i) of the Disclosure Schedule and licenses for any non-customized software that is generally available on standard terms for less than $5,000 per copy, directors seat or employees user, as applicable; (y) Contracts identified in Part 4.10 of Company the Disclosure Schedule); (viii) relating to the acquisition, issuance or transfer of any guaranty securities; (ix) relating to the creation of third party indebtedness or any Encumbrance with respect to any asset of obligations of officers, directors, employees or agents of any Acquired Company; (dx) involving or incorporating any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rights; guaranty (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not except for product warranties in the ordinary course of business business), any pledge, any performance or pursuant completion bond, any indemnity or any surety arrangement; (xi) creating or relating to which Company has any material ownership interest in any corporation, partnership, partnership or joint venture or other business enterprise other than Company's subsidiariesany sharing of revenues, profits, losses, costs or liabilities; (fxii) any agreement, contract Contracts identified or commitment containing exclusivity provisions pursuant required to which Company has agreed not to purchase be identified in Part 4.10 of the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another personDisclosure Schedule; (gxiii) involving any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditRelated Party; (hxiv) any settlement agreement constituting or relating to any claim (A) prime contract, subcontract, letter contract, purchase order or suitdelivery order executed or submitted to or on behalf of any Governmental Body or any prime contractor or higher-tier subcontractor, or under which any Governmental Body or any such prime contractor or subcontractor otherwise has or may acquire any right or interest, or (B) quotation, bid or proposal submitted to any Governmental Body or any proposed prime contractor or higher-tier subcontractor of any Governmental Body; (ixv) any real property lease covering more than 20,000 square feetthat was entered into outside the ordinary course of business; (jxvi) that has a term of more than 30 days and that may not be terminated by any agreementAcquired Company (without penalty) within 30 days after the delivery of a termination notice by any Acquired Company, contract disregarding employment agreements; and (xvii) that contemplates or commitment obligating Company to make any payments based on involves: (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $20,000 in the aggregate; or (B) the performance of services having a value in excess of $20,000 in the aggregate. The Contracts in the respective categories described in clauses (i) the number of users accessing any website operated by Company or any of its subsidiaries through (whether measured by registrations, click-throughs or purchases by such usersxvii) or (ii) revenues generated by purchases on any such website; or (above are referred to in this Agreement as “Material Contracts.”

Agreements, Contracts and Commitments. As Except as otherwise set forth in Part 2.17 of the Company Schedules, as of the date hereof, hereof neither the Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or higher or member of the Company's Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company 's or any of its subsidiaries subsidiaries' ability 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 payterminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations software products in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting (or which would limit following the Merger) in any respect the right of the Company or any of its subsidiaries or affiliates to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the 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 the Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's subsidiaries; (f) any agreementjoint marketing or development agreement currently in force under which the Company or any of its subsidiaries has continuing material obligations to jointly market any product, contract technology or commitment containing exclusivity provisions service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which the Company or any of its subsidiaries has agreed continuing material obligations to jointly develop any intellectual property that will not to purchase be owned, in whole or in part, by the goods (other than local grocery products) Company or services of, any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or enter into a commercial relationship with, another personless; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating currently in force to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a whole; or (h) any agreement, contract or commitment currently in force to make license any payments based on third party to manufacture or reproduce any Company product, service or technology except as a non-exclusive partner, non-exclusive distributor or non-exclusive reseller in the normal course of business. Neither the Company nor any of its subsidiaries, nor to the Company's knowledge any other party to a Company Contract (i) as defined below), is in breach, violation or default under, and neither the number Company nor any of users accessing its subsidiaries has received written notice that it has breached, violated or defaulted under, any website operated by of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedules pursuant to clauses (whether measured by registrations, click-throughs a) through (h) above or purchases by such users) or pursuant to Section 2.9 hereof (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date hereofof this Agreement, neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any written employment or consulting agreement, contract or commitment with any officer or director employee of Company or higher level employee any of its subsidiaries currently earning an annual salary in excess of $100,000 or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without material liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation except to the extent general principles of Company or any of its subsidiaries law may limit Company's ability 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 payterminate employees at will; (b) any material agreement of indemnification or plan, including, without limitation, any stock option plan, stock appreciation right plan guaranty other than any agreement of indemnification entered into in connection with the sale of products or stock purchase plan, any license of technology in the benefits ordinary course 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 Agreementbusiness; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (ed) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (e) any material dealer, distributor, joint marketing or development agreement under which Company or any of its subsidiaries have continuing 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 agreement pursuant to which Company or any of its subsidiaries have continuing obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (f) any material agreement, contract or commitment containing exclusivity provisions pursuant to which license any third party to manufacture or reproduce any Company has agreed not product, service or technology or any material agreement, contract or commitment to purchase sell or distribute any Company products, service or technology except agreements with distributors or sales representatives in the goods normal course of business cancelable without penalty upon notice of ninety (other than local grocery products90) days or services of, or enter into a commercial relationship with, another personless and substantially in the form previously provided to Parent; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries or extension of credit (whether measured other than customer accounts receivable owing to Company or any of its subsidiaries in the ordinary course of business and payable or dischargeable in accordance with customary trade terms); (h) any material settlement agreement under which Company or any of its subsidiaries has ongoing obligations; (i) any other agreement, contract or commitment that calls for the payment or receipt by registrations, click-throughs Company or purchases by such usersany of its subsidiaries of $1,000,000 or more; (j) or (ii) revenues generated by purchases any agreement under which the consequences of a default could reasonably be expected to have a Material Adverse Effect on any such websiteCompany; or (k) any other agreement, contract or commitment that is of the nature required to be filed by Company as an exhibit to a Report on Form 10-K under the Exchange Act which has not already been filed. Company has delivered or made available to Parent a correct and complete copy of each Company Contract (as defined below) as amended to date. Each Company Contract, with respect to Company and any relevant subsidiary and, to Company's knowledge, all other parties thereto, is legal, valid, binding, enforceable and in full force and effect in all respects. Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract, is in breach, violation or default under a Company Contract. Neither Company nor any of its subsidiaries has received written notice within the last twelve months that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule pursuant to this Section 2.18 (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of (a) Neither the date hereof, neither Company nor any of its subsidiaries is a party to or is bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level director, employee or member of the Company's ’s Board of Directors, other than those Directors (excluding standard employee contracts in foreign countries that are terminable governed by Company or any local law and which contain only standard, ordinary course of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Companybusiness provisions), (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result except for the phantom stock plans described 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 paySection 2.3(a); (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as set forth in Section 2.3(a); (ciii) any agreement of indemnification, except for standard business indemnification provisions in third-party vendor, customer and service provider contracts, and indemnification agreements with employees and former employees (the standard form of officerswhich was previously provided to NBEV) serving as officers and directors of the Company and its foreign subsidiaries, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations software products in the ordinary course of officers, directors, employees or agents of Companybusiness; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights, except for a commitment in connection with a settlement of a lawsuit not to manufacture or sell any mangosteen-based product; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the 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 the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's ’s subsidiaries; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which the 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 sixty (60) days or less, or any material agreement pursuant to which 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 Company or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less; (vii) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which provide source code to any third party for any product or technology that is material to Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into and its subsidiaries taken as a commercial relationship with, another personwhole; (gviii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Product, service or technology (except for the Tombo and Ba▇▇▇ ▇ontract manufacturing arrangements and other material vendors previously disclosed to NBEV) or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable based on their terms without penalty upon notice of sixty (60) days or less and substantially in the form previously provided to NBEV; (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, except for the indebtedness that was previously disclosed to NBEV; (hx) any material settlement agreement relating entered into within three (3) years prior to any claim or suit;the date of this Agreement, except for a confidential settlement agreement with two former executives as previously disclosed to NBEV; or (ixi) any real property lease covering more than 20,000 square feet; (j) any other agreement, contract or commitment obligating that has a value of $100,000 or more in any individual case outside the ordinary course of business. (b) Other than such breaches, violations or defaults as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its subsidiaries, nor to make the Company’s knowledge any payments based on other party to a Company Contract (i) as defined below), is in breach, violation or default under, and neither the number Company nor any of users accessing its subsidiaries has received written notice that it has breached, violated or defaulted under, any website operated by of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a “Company Contract”) in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date hereofExcept as set forth on Schedule 4.13, neither the Company nor any of its subsidiaries Subsidiary is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or (including, without limitation, any vice president)or member of the Company's or any Subsidiary's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Other 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 Agreement; (c) any agreement of indemnification or guaranty other than indemnification agreements between the Company and its Subsidiaries and any of officers, directors their officers or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries Subsidiaries to engage in any line of business in any geographic area or to compete with any person Person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiariesenterprise; (f) any joint marketing or development agreement; (g) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which Company has agreed not to purchase the goods (other than local grocery products) provide or services ofreceive source code for any product, service or enter into a commercial relationship with, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credittechnology except for maintenance purposes; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating currently in force to license any third party to manufacture or reproduce any product, service or technology provided by the Company or its Subsidiaries; (i) any supply agreement involving an aggregate amount of $250,000 or more; (j) any distribution agreement involving an aggregate amount of $250,000 or more; (k) any agreement relating to make the acquisition, transfer, development, sharing or license of any payments based on asset; (l) any agreement that contemplates or involves (i) the number payment or delivery of users accessing cash or other consideration on or after the date hereof having a value in excess of $250,000 in the aggregate or (ii) the performance of services on or after the date hereof having a value in excess of $250,000 in the aggregate; (i) any website operated by agreement to which any United States federal or foreign Governmental Authority is a party or has any rights or obligations, other than purchase orders issued in the ordinary course of business or (ii) under which any Governmental Authority has any non-standard indemnity or audit obligations; and (n) any other agreement, not otherwise identified in clauses "(a)" through "(m)", if the Company's performance or breach of such agreement could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary, nor to the Company's Knowledge, any other party to a Material Contract, 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 any of the agreements, contracts or commitments to which the Company or any of its subsidiaries Subsidiaries are parties or by which they are bound of the type described in clauses (whether measured by registrations, click-throughs or purchases by such usersa) or through (iin) revenues generated by purchases on above (any such website; agreement, contract or (commitment, a "Material Contract") in such a manner as would permit any other party to cancel or terminate any such Material Contract, or would permit any other party to seek damages, which would be reasonably likely to be material to the Company and its Subsidiaries, taken as a whole.

Agreements, Contracts and Commitments. As Except as set forth in ------------------------------------- Section 3.16 of the Company Disclosure Schedule, as of the date hereof, neither the Company nor any of its subsidiaries Subsidiaries is a party to or is bound by: (ia) any employment written or oral consulting agreement, contract or commitment with any officer independent contractor or director or higher level employee or member of Company's Board of Directors, consultant other than those that are terminable by the Company or any of its subsidiaries Subsidiaries on no more than thirty (30) 30 days' notice without liability or financial obligation to Companyobligation, (ii) or any such written or oral consulting agreement, contract or commitment with any employee, consultant, shareholder independent contractor or other person that will result in consultant under which any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by are contingent upon the occurrence of any a transaction involving the Company of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis nature of any of the transactions contemplated by this Agreement; (cb) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations software products in the ordinary course of officers, directors, employees business; and any commitment of the Company to honor or agents of Companymake any payment under any such indemnification arrangement; (dc) any agreement, contract or commitment containing any covenant (i) limiting in any respect the right of the Company or any of its subsidiaries Subsidiaries to engage in any line of business in any geographic area or to compete with any person or (ii) granting to any person any interest in Company's exclusive distribution rights; (ed) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company 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 the Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's subsidiariesSubsidiaries; (e) any joint marketing or development agreement currently in force under which the 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 90 days or less, or any material agreement pursuant to which the 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 the Company or any of its Subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (f) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which license any third party to manufacture or reproduce any Company has agreed not to purchase product, service or technology except as a distributor in the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person;normal course of business; or (g) any mortgagesloan, indenturesnote, guaranteesindenture or other instrument evidencing indebtedness in excess of $100,000. Neither the Company nor any of its Subsidiaries, loans or credit nor to the Company's knowledge any other party to any of the agreements, security agreements contracts or other agreements or instruments relating commitments to which the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its Subsidiaries is a party or by which any of them are bound that are required to be disclosed in the Company Disclosure Schedule pursuant to Section 3.15 or this Section 3.16 ("Company Contracts") is, as of ----------------- the date hereof, in breach, violation or default under (other than as a result of the insolvency of the Company), any Company Contract, except for breaches, violations or defaults that in the aggregate would not have a Material Adverse Effect. Except as set froth in Section 3.16 of the Company disclosure Schedule, neither the Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any Company Contract in such a manner as would permit any other party to cancel or terminate such Company Contract, or would permit any other party to seek material damages or other remedies (whether measured by registrationsfor any or all of such breaches, click-throughs violations or purchases by such users) or (ii) revenues generated by purchases on any such website; or (defaults, in the aggregate).

Agreements, Contracts and Commitments. As of Neither the date hereof, neither Company Parent nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's the Parent’s Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any ay 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 guaranty not entered into in the ordinary course of officers, directors or employees of Company business other than indemnification agreements between the Parent or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company the parent or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;enterprise; or (f) any material joint marketing or development agreement. Neither the Parent nor any of its subsidiaries, nor to the Parent’s knowledge any other party to a Parent Contract as defined herein), 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 any of the agreements, contracts or commitments to which the Parent or any of its subsidiaries is a party or by which it is bound of the type described in clauses (a) through (f) above (any such agreement, contract or commitment containing exclusivity provisions pursuant is referred to which Company has agreed not herein as a “PARENT CONTRACT”) in such a manner as would permit any other party to purchase the goods (other than local grocery products) cancel or services ofterminate any such Parent Contract, or enter into a commercial relationship withwould permit any other party seek damages, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating which would be reasonably likely to be material to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (Parent.

Agreements, Contracts and Commitments. As (a) Except as set forth in Section 2.12(a) of the date hereofCompany Disclosure Letter, neither the Company nor any of its subsidiaries does not have, is not a party to or nor is it bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, collective bargaining agreements; (ii) any such agreement, contract Contracts or commitment with arrangements that contain any employee, consultant, shareholder severance pay or other person that will result in any obligation of Company post-employment liabilities or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, obligations; (iii) any agreement with bonus, deferred compensation, pension, profit sharing or retirement plans, or any employee, consultant other employee benefit plans or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or arrangements; (iv) any employment or consulting Contract with an employee or individual consultant or salesperson or any consulting or sales agreement or arrangement providing for severance Contract under which any firm or termination payother organization provides services to the Company; (bv) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation right rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (or upon the occurrence of any 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 AgreementAgreement (or upon the occurrence of any subsequent events); (cvi) any fidelity or surety bond or completion bond; (vii) any lease of personal property having a value in excess of $25,000 individually or $50,000 in the aggregate; (viii) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Companyguaranty; (dix) any agreement, contract or commitment Contract containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rightsperson; (ex) any agreement, contract Contract relating to capital expenditures and involving future payments in excess of $50,000 individually or commitment currently $100,000 in force the aggregate; (xi) any Contract relating to the disposition or acquisition by Company 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiariesthe sale of inventory in the Ordinary Course of Business; (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (gxii) 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; (hxiii) any settlement agreement relating purchase order or Contract for the purchase of raw materials or finished products involving $50,000 or more per order or $100,000 or more in the aggregate to any claim or suitbe incurred by the Company following the date of this Agreement; (ixiv) any real property lease covering more than 20,000 square feetconstruction Contracts; (jxv) any distribution, joint marketing or development agreement; (xvi) any agreement pursuant to which the Company has granted or may grant in the future, contract to any party, a source-code license or commitment obligating option or other right to use or acquire source-code, or (xvii) any other Contract that involves $50,000 or more individually or $100,000 or more in the aggregate or is not cancelable without penalty within thirty (30) days. (b) The Company to make any payments based on (i) the number of users accessing any website operated by Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of its subsidiaries the terms or conditions of any Contract required to be set forth on Section 2.11 or Section 2.12(a) of the Company Disclosure Letter (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (Contract, a “Key Contract”). Each Key Contract is in full force and effect and, except as otherwise disclosed in Section 2.12(b) of the Company Disclosure Letter, to the Company’s Knowledge, no party obligated to the Company pursuant to a Key Contract is in default thereunder.

Agreements, Contracts and Commitments. As of Neither the date hereof, neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination payobligation; (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 guaranty not entered into in the ordinary course of officers, directors or employees of business other than indemnification agreements between the Company or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;enterprise; or (f) any material joint marketing or development agreement. Neither the Company nor any of its subsidiaries, contract nor to the Company's knowledge any other party to a Company Contract (as defined herein), has breached, violated or commitment containing exclusivity provisions pursuant defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries is a party or by which it is bound of the type described in clauses (whether measured by registrations, click-throughs or purchases by such usersa) or through (iif) revenues generated by purchases on above (any such website; agreement, contract or (commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek damages, which would be reasonably likely to be material to the Company.

Agreements, Contracts and Commitments. As (a) Section 2.12(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date hereofof this Agreement other than any Company Benefit Plans (each, neither a “Company nor any of its subsidiaries is a party to or is bound by:Material Contract” and collectively, the “Company Material Contracts”): (i) each Company Contract that is material to the Company relating to any employment agreement of indemnification or consulting agreement, contract or commitment with guaranty not entered into in the Ordinary Course of Business; (ii) each Company Contract that is material to the Company containing (A) any officer or director or higher level employee or member covenant limiting in any material respect the freedom of Company's Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries Subsidiaries to engage in any line of business in any geographic area or to compete with any person Person, (B) any most-favored nation or granting other preferred pricing arrangement in favor of a Person other than the Company or any similar term by which any Person is or could become entitled to any person benefit, right or privilege that must be at least as favorable to such Person as those offered to any interest other Person, (C) any exclusivity provision, right of first refusal or right of first negotiation or similar covenant in favor of a Person other than the Company's distribution rights, or (D) any non-solicitation provision not entered into in the Ordinary Course of Business; (eiii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $500,000 in any agreement, contract or commitment currently in force calendar year pursuant to its express terms and not cancelable without penalty; (iv) each Company Contract (A) relating to the disposition or acquisition by Company of material assets, (B) relating to the future acquisition, issuance, voting, registration, sale or transfer of Equity or other security, or (C) providing any Person with any preemptive right, right of participation, right of maintenance 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 similar right with respect to which Company has any material ownership interest in any corporation, partnership, joint venture Equity or other business enterprise other than Company's subsidiariessecurity; (fv) any agreement, contract or commitment containing exclusivity provisions pursuant each Company Contract relating to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) credit or creating any settlement agreement relating material Encumbrances with respect to any claim assets of the Company or suit; (i) its Subsidiaries or any real property lease covering more than 20,000 square feet; (j) any agreement, contract loans or commitment obligating Company to make any payments based on (i) debt obligations with officers or directors of the number of users accessing any website operated by Company or any of its subsidiaries Subsidiaries; (whether measured vi) each Company Contract requiring payment by registrationsor to the Company or any of its Subsidiaries after the date of this Agreement in excess of $500,000 in the aggregate in the current calendar year or any future calendar year pursuant to its express terms relating to: (A) any agreement involving the development or commercialization of any pharmaceutical product (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries; (C) any dealer, click-throughs distributor, joint marketing, alliance, joint venture, cooperation, development or purchases other agreement currently in force under which the Company or any of its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property Rights that will not be owned, in whole or in part, by such users) the Company or (ii) revenues generated by purchases on any such websiteits Subsidiaries; or (D) any Contract with any third party providing any services relating to the manufacture or production of any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries; (vii) each Company Real Estate Lease; (viii) each Company Contract with any financial advisor, broker, finder, investment banker or other similar Person providing financial advisory services to the Company or its Subsidiaries; (ix) each Company Contract with any Governmental Body; (x) each Company Out-bound License and Company In-bound License, and each Company Contract containing a covenant not to sue or otherwise enforce any Intellectual Property Rights; (xi) each Company Contract requiring Seller or any of its Subsidiaries to use commercially reasonable (or similar) efforts to achieve specific milestones with respect to, or otherwise related to the research, development or sale of, any Company product; (xii) each Company Contract requiring the payment of any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; (xiii) each Company Contract providing any option to receive a license or other right, any right of first negotiation, any right of first refusal or any similar right to any Person related to any material Company IP or material Intellectual Property Right licensed to the Company or any Company Subsidiary under a Company In-bound License; (xiv) each Company Contract entered into in settlement of any material Legal Proceeding or other dispute; and (xv) any other Company Contract that is not terminable at will (with no penalty or payment, except as required by applicable Law) by the Company and (A) which involves payment or receipt by the Company or any of its Subsidiaries within one (1) year after the date of this Agreement under any such agreement, Contract or commitment of more than $500,000 in the aggregate, or obligations within one (1) year after the date of this Agreement in excess of $500,000 in the aggregate, or (B) that is material to the business or operations of the Company and its Subsidiaries taken as a whole. (b) Seller has delivered or made available to Purchaser accurate and complete copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in written form. Neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, as of the date of this Agreement, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any Company Material Contract, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. As to the Company and each of its Subsidiaries, as applicable, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company or any of its Subsidiaries under any Company Material Contract or any other material term or provision of any Company Material Contract, and no Person has provided written notice to the Company or any of its Subsidiaries that it desires to renegotiate, modify, not renew or cancel any Company Material Contract, except as would not be reasonably expected to be material to the Company and its Subsidiaries, taken as a whole.

Agreements, Contracts and Commitments. As of Neither the date hereof, neither Company nor any of its subsidiaries has, nor is it a party to or nor is it bound by: (ia) 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 director-level employee or member of Company's Board of Directorsemployee, other than those that are not terminable by the Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation liability, except to the extent general principles of wrongful termination law may limit the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries 's ability 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 payterminate 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; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rights; (e) any agreement, contract or commitment currently in force relating to (excluding real and personal property leases) which involves payment by the disposition Company of $20,000 or acquisition more (excluding amounts which are already owing by the Company or any of its subsidiaries after such subsidiary at the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiariesBalance Sheet); (f) any agreementagreement under which the Company or its subsidiaries is restricted from selling, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services oflicensing, or enter into a commercial relationship withotherwise distributing any of its products to any class of customers, another personin any geographic area, during any period of time, or in any segment of the market; (g) any mortgagesagreement under which the Company is restricted from entering into any line of business, indenturesintroducing any products, guaranteesundertaking any activities, loans or credit agreementscompeting with any other person or entity in any line of business, security agreements in any geographic area, during any period of time, or other agreements or instruments relating to in any segment of the borrowing of money or extension of creditmarket; (h) any settlement agreement relating under which the Company or its subsidiaries provides warranty for any of its products or services or pursuant to which the Company or its subsidiaries has any claim repair, replacement, service, or suit;similar warranty obligations for products or services previously sold by the Company or its subsidiaries; or (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) agreement under which the number of users accessing any website operated by Company or any of its subsidiaries (whether measured is or may be obligated to remove any products, radios, cables, base stations, or related equipment previously sold or installed by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (the Company.

Agreements, Contracts and Commitments. As (a) Except as set forth in SECTION 2.20(a) of the date hereofCompany Schedule, neither the Company nor any of its subsidiaries is a party to or is bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level officer, director, the Company employee currently earning an annual salary in excess of $100,000 or member of the Company's Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) calendar days' notice without liability or financial obligation to the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ciii) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of officers, directors or employees software products in the ordinary course of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Companybusiness; (div) any material agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the 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 the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's subsidiaries; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which the 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) calendar days or less, or any material agreement pursuant to which the 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 the Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) calendar days or less; (vii) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which provide source code to any third party for any product or technology that is material to the Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into and its subsidiaries taken as a commercial relationship with, another personwhole; (gviii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) calendar days or less and substantially in the form previously provided to Parent; (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; (hx) to the knowledge of the Company, any material settlement agreement entered into within five (5) years prior to the date of this Agreement which has not yet been fully performed or which contains provisions that restrict or otherwise govern the conduct of business by the Company or any of its subsidiaries; or (xi) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any other agreement, contract or commitment obligating that has a value of $100,000 or more individually or annually. (b) Neither the Company nor any of its subsidiaries, nor to make the Company's knowledge any payments based on other party to a Company Contract (i) as defined below), is in breach, violation or default under, and neither the number Company nor any of users accessing its subsidiaries has received written notice that it has breached, violated or defaulted under, any website operated by of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate). The Company has made available to Parent true and correct copies of any contracts the Company may have with its top ten customers.

Agreements, Contracts and Commitments. As of (a) Neither the date hereof, neither Company nor any of its subsidiaries is a party to or is bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation to the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ciii) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations hardware or software products in the ordinary course of officers, directors, employees or agents of Companybusiness; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the 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 the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's subsidiaries; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which the 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 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 Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (vii) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which provide source code to any third party for any product or technology that is material to Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into and its subsidiaries taken as a commercial relationship with, another personwhole; (gviii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (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, other than accounts receivables and payables in the ordinary course of business; (hx) any material settlement agreement relating entered into within five (5) years prior to any claim or suit;the date of this Agreement; or (ixi) any real property lease covering more than 20,000 square feet; (j) any other agreement, contract or commitment obligating that has a value of $300,000 or more in any individual case. (b) Neither the Company nor any of its subsidiaries, nor to make the Company's knowledge any payments based on other party to a Company Contract (i) as defined below), is in breach, violation or default under, and neither the number Company nor any of users accessing its subsidiaries has received written notice that it has breached, violated or defaulted under, any website operated by of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound that are required to be set forth in the Company Disclosure Letter (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As (a) Section 2.12(a) of the date hereofCompany Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, neither approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company nor any of its subsidiaries Schedule, the Company does not have, is not a party to or nor is it bound by: (i) any collective bargaining agreements; (ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations; (iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements; (iv) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directors, other than those that are terminable by Company individual consultant or any of its subsidiaries on no more than thirty (30) days' notice without liability salesperson or financial obligation to Company, (ii) any such consulting or sales agreement, contract or commitment with any employee, consultant, shareholder a firm 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, organization; (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 (ivv) any agreement or arrangement providing for severance or termination pay; plan (b) 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 Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreementhereby or thereby; (cvi) any fidelity or surety bond or completion bond; (vii) any lease of real or personal property having a value individually in excess of $25,000; (viii) any agreement of indemnification of officersindemnification, directors guaranty or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Companysuretyship; (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rightsperson; (ex) any agreement, contract or commitment currently relating to capital expenditures or involving future payments in force excess of $25,000; (xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition by Company 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's subsidiaries’s business; (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (gxii) 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; (hxiii) any settlement agreement relating to any claim purchase order or suitcontract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business; (ixiv) any real property lease covering more than 20,000 square feetconstruction contracts; (jxv) any distribution, joint marketing, licensing or development agreement; or (xvi) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days. (b) 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 as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment obligating Company to make any payments based on which it is a party or by which it or its assets or properties are or may be bound (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).

Agreements, Contracts and Commitments. As Except as set forth in Section ------------------------------------- 2.20 of the date hereofCompany Schedule, neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director vice president or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of the 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 paysubsidiaries; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any product warranty or agreement of third party indebtedness indemnification substantially in the Company's standard form for the applicable standard form of customer agreement in which the warranty or indemnification agreement is incorporated entered into in connection with the sale or license of obligations software products in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which 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 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 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 containing exclusivity provisions pursuant currently in force to which provide source code to any third party for any product or technology that is material to Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into and its subsidiaries taken as a commercial relationship with, another personwhole; (gh) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any product, service or technology of Company or any of its subsidiaries or any agreement, contract or commitment currently in force to sell or distribute any products, service or technology of Company or any of its subsidiaries except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (hj) any settlement agreement relating entered into within five (5) years prior to any claim or suit;the date of this Agreement; or (ik) any real property lease covering more than 20,000 square feet; (j) any other agreement, contract or commitment obligating currently in force under which Company will pay, or expects to make receive, after the date hereof an amount in excess of $150,000 or more individually. Neither Company nor any payments based on of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (ias defined below), is in breach, violation or default under, and neither 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 agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which any of them are bound that are required to be disclosed in Sections 2.19(h) or 2.20 of the number of users accessing any website operated by Company Schedule or that are otherwise material to Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date hereofof this Agreement, except as set forth in Section 2.17(g) or Section 2.18 of the Company Schedule, neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any written employment or consulting agreement, contract or commitment with any officer or director or higher level employee of Company currently earning an annual salary in excess of $150,000 or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without material liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any material agreement of indemnification or plan, including, without limitation, any stock option plan, stock appreciation right plan guaranty other than any agreement of indemnification entered into in connection with the sale of products or stock purchase plan, any license of technology in the benefits ordinary course 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 Agreementbusiness; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any material agreement, contract or commitment containing any covenant limiting in any material respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (ed) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (e) any dealer, distributor, joint marketing or development agreement under which 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 material penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which 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 Company or any of its subsidiaries and which may not be canceled without material penalty upon notice of ninety (90) days or less; (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which license any third party to manufacture or reproduce any Company has agreed not product, service or technology or any agreement, contract or commitment to purchase sell or distribute any Company products, service or technology except agreements with distributors or sales representatives in the goods normal course of business cancelable without material penalty upon notice of ninety (other than local grocery products90) days or services of, or enter into a commercial relationship with, another personless and substantially in the form previously provided to Parent; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Company or extension of creditcredit (other than customer accounts receivable owing to Company created in the ordinary course of business and payable or dischargeable in accordance with customary trade terms); (h) any material settlement agreement relating to any claim or suitunder which Company has ongoing obligations; (i) any real property lease covering more than 20,000 square feet;other agreement, contract or commitment that calls for the payment or receipt by Company of $3,000,000 or more; or (j) any other agreement, contract or commitment obligating that is of the nature required to be filed by Company as an exhibit to make a Report on Form 10-K under the Exchange Act. Neither Company nor any payments based on of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (i) as defined below), is in material breach, violation or default under a Company Contract. Neither Company nor any of its subsidiaries has received written notice within the number last twelve months that it has breached, violated or defaulted under, any of users accessing the material terms or conditions of any website operated by of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule pursuant to this Section 2.18 (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As (a) Except as filed as an exhibit to any of the date hereofCompany SEC Reports, neither the Company nor any of its subsidiaries is a party to or is bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level director, officer, employee or member of Company's Board of Directorsconsultant, other than those that are terminable at-will by the Company or any of its subsidiaries on no more than thirty (30) 30 days' notice and without liability or financial obligation to Companyother than accrued wages, salary or benefits; (ii) any such agreementagreement of indemnification, contract or commitment other than indemnification agreements with any employeedirectors and officers of the Company and its subsidiaries, consultant, shareholder or other person that will result in any obligation outside the ordinary course of Company the Company's business 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 payguaranty; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (diii) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries (i) to engage in any line of business in any geographic area business, (ii) to develop, market or distribute products or services, or (iii) to compete with any person person, or granting to any person any interest in Company's exclusive distribution rights; (eiv) any lease for real or personal property in which the amount of payments which the Company or any of its subsidiaries is required to make on an annual basis exceeds $100,000; (v) other than contracts related to any Discontinued Business, any material agreement, contract, policy, license, permit, document, instrument, arrangement or commitment involving annual revenues to the Company or any of its subsidiaries in excess of $100,000 which has not been terminated or performed in its entirety and not renewed and which may be, by its terms, terminated, or which may, by its terms, have any of the obligations of the Company or any of its subsidiaries adjusted, as a result of the execution of this Agreement or the Voting Agreements or the consummation of the Merger, where such right of termination or adjustment would not have arisen or existed but for such execution or consummation; (vi) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the 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 the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's subsidiaries; (fvii) any sponsorship, advertising, merchant program, hosting or other similar agreement to which the Company or one of its subsidiaries is a party which may not be canceled by the Company or its subsidiaries, as the case may be, without penalty in excess of $100,000 upon notice of 30 days or less or which provides for payments by or to the Company or its subsidiaries on an annual basis in an amount in excess of $100,000; (viii) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which Company has agreed not license or provide source code to purchase the goods (other than local grocery products) any third party for any product or services of, or enter into a commercial relationship with, another person;technology; or (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (jix) any agreement, contract or commitment obligating currently in effect that is material to the Company's business as presently conducted, including any agreement required to be filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K and all amendments to any agreements included as an exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2001. (b) Set forth in Section 2.14 of the Company Disclosure Letter is (A) a list of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to make which any payments based on (i) indebtedness of the number of users accessing any website operated by Company or any of its subsidiaries in a principal amount in excess of $100,000 is outstanding or may be incurred and (whether measured B) the respective principal amounts currently outstanding thereunder. For purposes of this Section 2.14(b), "INDEBTEDNESS" shall mean, with respect to any person, without duplication, (A) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (B) all obligations of such person evidenced by registrationsbonds, click-throughs debentures, notes or purchases similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such usersperson, (E) all obligations of such person issued or assumed as the deferred purchase price of property or services (iiexcluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person's business), (F) revenues generated all capitalized lease obligations of such person, (G) all obligations of others secured by purchases any Lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency swap transactions (valued at the termination value thereof), (i) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business), (J) all obligations of such person to purchase securities (or other property) which arises out of or in connection with the sale of the same or substantially similar securities or property, and (K) all guarantees and arrangements having the economic effect of a guarantee of such person of any such website; or (indebtedness of any other person.

Agreements, Contracts and Commitments. As of the date hereof(a) Schedule 2.19 sets forth a true, neither Company nor any of its subsidiaries is a party to or is bound byaccurate and complete list of: (i) All Contracts to which the Company is a party or by which any employment its assets or consulting agreementproperties is bound (i) that involves consideration or other expenditure in excess of $10,000.00 during a fiscal year, contract (ii) that involves performance by the Company over a period of more than six (6) months, (iii) that cannot, by its terms, be terminated by the Company without penalty or commitment with payment on thirty (30) days or less notice, or (iv) that is otherwise material to the ongoing business or ongoing operations of the Company (the “Material Contracts”); (ii) All Contracts (which schedule shall reflect which such Submetering Contracts are written or oral) to which the Company is a party or by which any officer of its assets or director properties is bound that obligate the Company to furnish meter reading, billing (including allocation billing and ratio billing) or higher level employee collection services in the Business (the “Submetering Contracts”); (iii) All Contracts to which the Company is a party or member by which any its assets or properties is bound that obligate the Company to furnish installation, construction or maintenance services in the Business (the “Construction Contracts”); and (iv) All Contracts to which the Company (or the Seller, in the case of Company's Board of Directors, other than those Leased Vehicles and Leased Computer Equipment that are terminable used by the Company) is a party or by which any its assets or properties is bound that are real or personal property leases (the “Material Leases”); (v) All Contracts to which the Company is a party or by which any its assets or properties is bound that are guarantees or under which the Company indemnifies or is contingently liable for the payment or performance of any liability or obligation of any other Person (the “Guarantees”); (vi) All Contracts between the Company, on the one hand, and any of its Affiliates or any of the shareholders, officers, directors, employees, consultants, sales representatives, agents (or any of their respective Affiliates), on the other hand (the “Affiliate Agreements”); (vii) All Contracts to which the Company is a party or by which any its assets or properties is bound that are licenses of any of the Included Intellectual Property (the “Material IP Licenses”); and (viii) All the Internet domain name registrations used by the Company in conducting its business, together with the name of the applicable registrar of Internet domain names (the “Domain Name Contracts”). The Material Contracts, Submetering Contracts, Construction Contracts, Material Leases, Guarantees, Affiliate Agreements, Material IP Licenses and Domain Name Contracts are collectively referred to in this Agreement as the “Company Contracts”. (b) True, accurate and complete copies of the written Company Contracts have been made available to Purchaser. There are no amendments or modifications to any of the Company Contracts that have not been made available to Purchaser. (c) To the Knowledge of Seller and the Company, each of the Company Contracts constitutes the valid and legally binding obligation of the parties thereto. Except as set forth on Schedule 2.19, the Company is in full compliance with all material terms and requirements of the Company Contracts. To the Knowledge of the Seller and the Company, none of the Company Contracts materially violates any applicable Laws. To the Knowledge of Seller and the Company, each other Person that has or had any obligation or liability under any of the Company Contracts is in full compliance with all material terms and requirements thereof. (d) Neither Seller nor the Company has given or received from any other Person any written notice regarding any actual, alleged, possible or potential violation or breach of, or default under, any of the Company Contracts. There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any reduction of material amounts paid or payable to the Company under any of the Company Contracts. Neither Seller nor the Company has received from any Person any written notice regarding the termination or amendment of the term of any of the Company Contracts. (e) The Company is not a party to or bound by any Contract or Organizational Document which purports to restrict by virtue of a noncompetition, territorial exclusivity or other provision covering such subject matter, the scope of the business or operations of the Company or any of its subsidiaries on no more than thirty (30) days' notice without liability Affiliates geographically or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;otherwise. (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating There is no power of attorney that is currently effective and outstanding with respect to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreementbusiness, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company operations or any of its subsidiaries (whether measured by registrations, click-throughs the assets or purchases by such users) or (ii) revenues generated by purchases on any such website; or (properties of the Company.

Agreements, Contracts and Commitments. As of Except as set forth in the date hereofKLA Schedules, neither Company KLA nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyKLA's Board of Directors, other than those that are terminable by Company KLA or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation the extent general principles of Company wrongful termination law may limit KLA's or any of its subsidiaries subsidiaries' ability 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 payterminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in the ordinary course of officers, directors or employees of Company business other than indemnification agreements between KLA or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company KLA or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;enterprise; or (f) any material joint marketing or development agreement. Neither KLA nor any of its subsidiaries, contract nor to KLA's knowledge any other party to a KLA Contract (as defined below), has breached, violated or commitment containing exclusivity provisions pursuant defaulted under, or received notice that it has breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company KLA or any of its subsidiaries is a party or by which it is bound of the type described in clauses (whether measured by registrations, click-throughs or purchases by such usersa) or through (iil) revenues generated by purchases on above (any such website; agreement, contract or (commitment, a "KLA CONTRACT") in such a manner as would permit any other party to cancel or terminate any such KLA Contract, or would permit any other party to seek damages, which would be reasonably likely to be material to KLA.

Agreements, Contracts and Commitments. As of the date hereof, except as provided in PETREX Schedule 3.16, neither Company PETREX nor any of its subsidiaries is a party to or is bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyPETREX's Board of Directors, other than those that are terminable by Company PETREX or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to CompanyPETREX, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder stockholder or other person that will result in any obligation of Company PETREX 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 stockholder of Company PETREX pursuant to which Company PETREX has loaned or is obligated to loan any money thereto or (iv) any arrangement or 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 PETREX, except as provided for in PETREX's Articles of Incorporation or Bylaws, or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of CompanyPETREX; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company PETREX or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in CompanyPETREX's distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company PETREX 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 Company PETREX has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than CompanyPETREX's subsidiaries; (f) any agreementcontract, contract agreement or commitment containing exclusivity provisions pursuant to which Company PETREX has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 25,000 square feet;; or (j) any other agreement, lease, contract or commitment obligating Company that involves remaining obligations of PETREX of $1,000 or more individually. Neither PETREX nor any of its subsidiaries, nor to make PETREX's knowledge any payments based on other party to a PETREX Contract (i) as defined below), is in breach, violation or default under, and neither PETREX nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the number terms or conditions of users accessing any website operated by Company of the agreements, contracts or commitments to which PETREX or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the PETREX Schedules (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "PETREX CONTRACT") in such a manner as would permit any other party to cancel or terminate any such PETREX 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).

Agreements, Contracts and Commitments. As (a) Section 3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date hereofof this Agreement (each, neither a “Company nor any of its subsidiaries is a party to or is bound by:Material Contract” and collectively, the “Company Material Contracts”): (i) each Company 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 Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability other employee benefit plans or financial obligation to Company, arrangements; (ii) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $75,000 relating to the employment of, or the performance of employment-related services by, any such agreementPerson, 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 including any employee, consultant or shareholder independent contractor, or Entity providing employment related, consulting or independent contractor services, not terminable by the Company on ninety (90) calendar days’ or less notice without liability, except to the extent general principles of Company pursuant wrongful termination Law may limit the Company’s, or such successor’s ability to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination payterminate employees at will; (biii) 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) each Company Contract relating to any agreement of indemnification or guaranty not entered into in the Ordinary Course of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of CompanyBusiness; (div) any agreement, contract or commitment each Company Contract containing (A) any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries the Surviving Company to engage in any line of business in any geographic area or to compete with any person Person, or granting to limiting the development, manufacture, or distribution of the Company’s products or services (B) any person most-favored pricing arrangement, (C) any interest in Company's distribution rightsexclusivity provision or (D) any non-solicitation provision except for Company Contracts with Persons that are employees or independent contractors; (ev) each Company Contract (A) pursuant to which any agreementPerson granted the Company an exclusive license under any Intellectual Property, contract or commitment currently (B) pursuant to which the Company granted any Person an exclusive license under any Company IP Rights; (vi) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in force excess of $100,000 pursuant to its express terms and not cancelable without penalty; (vii) each Company Contract relating to the disposition or acquisition by Company 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiariesEntity; (fviii) any agreement, contract or commitment containing exclusivity provisions pursuant each Company Contract relating to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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 $50,000 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; (hix) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $50,000 pursuant to its express terms relating to: (A) any settlement distribution agreement relating (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any claim pre-clinical or suitclinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business; (ix) each Company Contract with any real property lease covering more than 20,000 square feetPerson, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions; (jxi) each Company Contract with a Governmental Authority; (xii) each Company Contract to which the Company is a party or by which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $50,000; (xiii) a Company Real Estate Lease; or (xiv) 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 obligating of more than $25,000 in the aggregate, or obligations after the date of this Agreement in excess of $25,000 in the aggregate or (B) that is material to the business or operations of the Company taken as a whole. (b) The Company has delivered or made available to make Parent accurate and complete copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in written form. The Company has not, nor to the Company’s Knowledge, as of the date of this Agreement has any payments based on (i) other party to a Company Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the number terms or conditions of users accessing any website operated by Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Company, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company under any Company Material Contract or any other material term or provision of its subsidiaries (whether measured by registrationsany Company Material Contract, click-throughs and no Person has indicated in writing to the Company that it desires to renegotiate, modify, not renew or purchases by such users) or (ii) revenues generated by purchases on cancel any such website; or (Company Material Contract.

Agreements, Contracts and Commitments. As (a) Except as filed as an exhibit to any of the date hereofCompany SEC Reports, neither the Company nor any of its subsidiaries is a party to or is bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level director, officer, employee or member of Company's Board of Directorsconsultant, other than those that are terminable at-will by the Company or any of its subsidiaries on no more than thirty (30) 30 days' ’ notice and without liability or financial obligation to Companyother than accrued wages, salary or benefits; (ii) any such agreementagreement of indemnification, contract or commitment other than indemnification agreements with any employeedirectors and officers of the Company and its subsidiaries, consultant, shareholder or other person that will result in any obligation outside the ordinary course of Company the Company’s business 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 payguaranty; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (diii) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries (i) to engage in any line of business in any geographic area business, (ii) to develop, market or distribute products or services, or (iii) to compete with any person person, or granting to any person any interest in Company's exclusive distribution rights; (eiv) any lease for real or personal property in which the amount of payments which the Company or any of its subsidiaries is required to make on an annual basis exceeds $100,000; (v) other than contracts related to any Discontinued Business, any material agreement, contract, policy, license, permit, document, instrument, arrangement or commitment involving annual revenues to the Company or any of its subsidiaries in excess of $100,000 which has not been terminated or performed in its entirety and not renewed and which may be, by its terms, terminated, or which may, by its terms, have any of the obligations of the Company or any of its subsidiaries adjusted, as a result of the execution of this Agreement or the Voting Agreements or the consummation of the Merger, where such right of termination or adjustment would not have arisen or existed but for such execution or consummation; (vi) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the 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 the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's ’s subsidiaries; (fvii) any sponsorship, advertising, merchant program, hosting or other similar agreement to which the Company or one of its subsidiaries is a party which may not be canceled by the Company or its subsidiaries, as the case may be, without penalty in excess of $100,000 upon notice of 30 days or less or which provides for payments by or to the Company or its subsidiaries on an annual basis in an amount in excess of $100,000; (viii) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which Company has agreed not license or provide source code to purchase the goods (other than local grocery products) any third party for any product or services of, or enter into a commercial relationship with, another person;technology; or (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (jix) any agreement, contract or commitment obligating currently in effect that is material to the Company’s business as presently conducted, including any agreement required to be filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K and all amendments to any agreements included as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2001. (b) Set forth in Section 2.14 of the Company Disclosure Letter is (A) a list of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to make which any payments based on (i) indebtedness of the number of users accessing any website operated by Company or any of its subsidiaries in a principal amount in excess of $100,000 is outstanding or may be incurred and (whether measured B) the respective principal amounts currently outstanding thereunder. For purposes of this Section 2.14(b), “indebtedness” shall mean, with respect to any person, without duplication, (A) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (B) all obligations of such person evidenced by registrationsbonds, click-throughs debentures, notes or purchases similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such usersperson, (E) all obligations of such person issued or assumed as the deferred purchase price of property or services (iiexcluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person’s business), (F) revenues generated all capitalized lease obligations of such person, (G) all obligations of others secured by purchases any Lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency swap transactions (valued at the termination value thereof), (i) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business), (J) all obligations of such person to purchase securities (or other property) which arises out of or in connection with the sale of the same or substantially similar securities or property, and (K) all guarantees and arrangements having the economic effect of a guarantee of such person of any such website; or (indebtedness of any other person.

Agreements, Contracts and Commitments. As (a) Except as set forth in Section 2.11(a) of the date hereofCompany Disclosure Schedule, neither each of the Company nor any of and its subsidiaries does not have continuing obligations under, is not a party to or nor is it bound by: (i) any collective bargaining agreements, (ii) any agreements or arrangements that contain any severance pay, post-employment liabilities or obligations or "golden parachute" provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein), (iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, (iv) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directors, other than those that are terminable by Company individual consultant or any of its subsidiaries on no more than thirty (30) days' notice without liability salesperson or financial obligation to Company, (ii) any such consulting or sales agreement, contract or commitment with any employee, consultant, shareholder a firm 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;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;, 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 $25,000, (viii) any agreement of indemnification indemnification, warranty or guaranty other than in the ordinary course of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company;business, (dix) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rights;person, (ex) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;$50,000, (fxi) any agreement, contract or commitment containing exclusivity provisions pursuant relating to which Company has agreed not to purchase the goods (other than local grocery products) disposition or services of, acquisition of material assets or enter into a commercial relationship with, another person;any interest in any business enterprise outside the ordinary course of the Company's business or any subsidiary's business, (gxii) 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;, (hxiii) any settlement agreement relating to any claim distribution, joint marketing or suit;development agreement, (i) any real property lease covering more than 20,000 square feet; (jxiv) any agreement, contract or commitment obligating with any customer or vendor which, during the last two fiscal years of the Company, accounted, or is expected to account during the Company's current fiscal year, for more than 5% of the Company's revenue or trade payables, as applicable or (xv) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days. (b) Except for any 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 as noted in Section 2.11(b) of the Company to make any payments based on (i) Disclosure Schedule, neither the number of users accessing any website operated by Company or nor any of its subsidiaries has materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any material agreement, contract or commitment set forth in Section 2.10 or Section 2.11(a) of the Company Disclosure Schedule (whether measured a "Company Contract"). Each Company ---------------- Contract is in full force and effect and, except as otherwise disclosed in Section 2.11(b) of the Company Disclosure Schedule, is not subject to any default thereunder of which the Company or any subsidiary is aware by registrations, click-throughs any party obligated to the Company or purchases by such users) or (ii) revenues generated by purchases on any such website; or (subsidiary pursuant thereto.

Agreements, Contracts and Commitments. As of the date hereofExcept as set forth on Schedule 3.16, Schedule 3.25(a), Schedule 3.26(b), Schedule 3.26(c), or Schedule 3.25(g), neither the Company nor any of its subsidiaries Subsidiaries has, is a party to or is bound by: (i) any collective bargaining agreement; (ii) any employment or consulting agreement, contract or commitment with any officer current Employee, contractor, consultant or director advisor or higher level employee with any other Employee or member of Company's Board of Directorsformer contractor, other than those that are terminable by consultant, or advisor under which the Company or any of its subsidiaries on no more than thirty Subsidiaries has any outstanding obligation or liability; (30) days' notice without liability or financial obligation to Company, (iiiii) any such agreementbonus or any other incentive compensation, contract deferred compensation, severance, salary continuation, pension, profit sharing or commitment retirement plan, or any other employee benefit plan or arrangement; (iv) any commission and/or sales agreement with any employeecurrent Employee, consultantindividual consultant or salesperson, shareholder or with any other person that will result in any obligation of Employee, former individual consultant or former salesperson under which the Company or any of its subsidiaries Subsidiaries has any outstanding liability or obligation, or under which a firm or other organization provides commission or sales-based services to make the Company or 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 payits Subsidiaries; (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 the Merger or any of the other transactions contemplated by this Agreement and the Related Agreements or the value of any of the benefits of which will be calculated on the basis of the Merger or any of the other transactions contemplated by this AgreementAgreement or the Related Agreements; (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 of officers, directors or employees guaranty to any third party (other than agreements for the sale or resale of Company or any guaranty Products entered into in the ordinary course of third party indebtedness or business which provide indemnification only for patent infringement and which expressly disclaim special, consequential and punitive damages and for which the indemnification liability of obligations of officers, directors, employees or agents of Companythe Company and its Subsidiaries in the aggregate is not material); (dix) any agreement, contract or commitment agreement containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business or in any geographic area territory or to compete with any person Person, or granting which grants to any person Person any interest in Company's distribution rightsexclusivity to any geographic territory, any customer, or any product or service; (ex) any agreement, contract or commitment currently in force agreement relating to capital expenditures and involving future payments in excess of $100,000; (xi) any agreement relating to (A) the acquisition or disposition or acquisition by Company of assets outside the ordinary course of the Company’s or any of its subsidiaries after Subsidiaries’ business, in each case involving $100,000 or more or (B) the date acquisition or disposition of this Agreement of a material amount of assets any interest (including any asset purchase, whether or not in the ordinary course excess of business or pursuant to which Company has any material ownership interest $100,000) in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiariesenterprise; (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (gxii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or the extension of credit, including guaranties referred to in clause (viii) hereof, other than accounts receivable and accounts payable arising in the ordinary course of business; (hxiii) any settlement agreement relating to any claim unpaid or suitunperformed purchase order or purchase contract (including for services) involving $100,000 or more; (ixiv) any real property lease covering more than 20,000 square feetdealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant agreement involving $100,000 or more; (jxv) any agreement, contract or commitment obligating Company agreement pursuant to make any payments based on (i) which the number of users accessing any website operated by Company or any of its subsidiaries Subsidiaries has granted or may be obligated to grant in the future, to any Person, a source-code license or option or other right to use or acquire source code, including any agreements which provide for source code escrow arrangements; (whether measured by registrationsxvi) any sales representative, clickoriginal equipment manufacturer, value added re-throughs seller, re-marketer or purchases by other agreement for distribution of the Company’s or any of its Subsidiaries’ products or services, or the products or services of any other Person, other than re-seller agreements that have generated less than $100,000 in sales over the last twelve (12) month period; (xvii) any agreement pursuant to which the Company has advanced or loaned any amount to any Stockholder of the Company or any Employee, or consultant thereof, other than business travel advances in the ordinary course of business consistent with past practice; or (xviii) any other agreement that involves $100,000 or more or is not cancelable without penalty within ninety (90) days. Each Contract is in full force and effect. The Company and each of its Subsidiaries are in material compliance with and have not materially breached, violated or defaulted under, or received written notice that they have breached, violated or defaulted under, any of the terms or conditions of any Contract, nor does the Company have knowledge of any event or occurrence that would constitute such users) a breach, violation or default (ii) revenues generated by purchases on any such website; with or (without the lapse of time, giving of notice or both).

Agreements, Contracts and Commitments. As of Except as set forth in the date hereofFractal Schedules, neither Company Fractal nor any of its subsidiaries is a party to or is bound by: : (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyFractal's Board of Directors, other than those that are terminable by Company Fractal or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation the extent general principles of Company wrongful termination law may limit Fractal's or any of its subsidiaries subsidiaries' ability 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; terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; ; (c) any agreement of indemnification or guaranty not entered into in the ordinary course of officers, directors or employees of Company business other than indemnification agreements between Fractal or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; ; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company Fractal or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; ; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; enterprise; or (f) any material joint marketing or development agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (. 12

Agreements, Contracts and Commitments. As of Except as set forth in the date hereofSPI Schedules, neither Company SPI nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanySPI's Board of Directors, other than those that are terminable by Company SPI or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation the extent general principles of Company wrongful termination law may limit SPI's or any of its subsidiaries subsidiaries' ability 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 payterminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in the ordinary course of officers, directors or employees of Company business other than indemnification agreements between SPI or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company SPI or any of its subsidiaries to engage in any line of business (except for license agreements entered into in any geographic area the ordinary course of business with SPI as the licensee, which limit SPI's activities thereunder to the scope of the license) or to compete with any person or granting any exclusive distribution rights to any person any interest in Company's distribution rightsa third party; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiariesenterprise; (f) any material joint marketing or development agreement; (g) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which Company has agreed not to purchase the goods (other than local grocery products) provide or services ofreceive source code for any product, service or enter into a commercial relationship with, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credittechnology except for maintenance purposes; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company currently in force to make license any payments based on third party to manufacture or reproduce any SPI product, service or technology except as a distributor in the normal course of business. Neither SPI nor any of its subsidiaries, nor to SPI's knowledge any other party to an SPI Contract (i) as defined below), has breached, violated or defaulted under, or received notice that it has breached violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by Company of the agreements, contracts or commitments to which SPI or any of its subsidiaries is a party or by which it is bound of the type described in clauses (whether measured by registrations, click-throughs or purchases by such usersa) or through (iih) revenues generated by purchases on above (any such website; agreement, contract or (commitment, an "SPI Contract") in such a manner as would permit any other party to seek damages, which would be reasonably likely to be material to SPI, or would permit any other party to cancel or terminate any such SPI Contract.

Agreements, Contracts and Commitments. As of the date hereof(a) The Company does not have, neither Company nor any of its subsidiaries is a party to or is not bound by: (i) any contract, license or agreement to which the Company is a party (A) with respect to Company Intellectual Property licensed or transferred to any third party or (B) pursuant to which a third party has licensed or transferred any Intellectual Property to the Company, with a value or cost in excess of $25,000; (ii) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directors, other than those that are terminable by Company individual consultant or any of its subsidiaries on no more than thirty (30) days' notice without liability salesperson or financial obligation to Company, (ii) any such consulting or sales agreement, contract or commitment with any employee, consultant, shareholder a firm 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 payorganization; (biii) 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; (civ) any agreement of indemnification of officers, directors fidelity or employees of Company surety bond or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Companycompletion bond; (dv) any lease of personal property with fixed annual rental payments in excess of $25,000; (vi) any contract, license or agreement between the Company and any third party wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, hold harmless or otherwise assume or incur any obligation or liability with respect to the infringement or misappropriation by the Company or such third party of the Intellectual Property of any third party; (vii) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rightsperson; (eviii) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries$25,000; (fix) any agreement, contract or commitment containing exclusivity provisions pursuant relating to which Company has agreed not to purchase the goods (other than local grocery products) disposition or services of, acquisition of assets or enter into a commercial relationship with, another personany interest in any business enterprise outside the ordinary course of the Company's business; (gx) 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; (hxi) any settlement agreement relating to any claim purchase order or suitcontract for the purchase of materials involving $25,000 or more; (ixii) any real property lease covering more than 20,000 square feetconstruction contracts; (jxiii) any distribution, joint marketing or development agreement; or (xiv) any other agreement, contract or commitment obligating that involves $25,000 or more or is not cancelable without penalty within thirty (30) days. (b) The Company to make any payments based on (i) the number of users accessing any website operated by Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of its subsidiaries the terms or conditions of any material agreement, contract, license or commitment to which it is a party or by which it is bound (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; material agreement, contract, license or (commitment, a "CONTRACT"), and the Company is not aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. To the knowledge of the Company, each Contract is in full force and effect, and, to the knowledge of the Company, all other parties to each Contract are in compliance with, and have not breached any term of, such Contract. 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 thereunder in connection with the Merger or to remain in effect without modification after the Closing. Following the Effective Time, the Company will be permitted to exercise all of the Company's rights under the Contracts to the same extent the Company would have been able to had the Merger not occurred and 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.

Agreements, Contracts and Commitments. As of (a) Neither the date hereof, neither Company nor any of its subsidiaries is a party to or is bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation to the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ciii) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations hardware or software products in the ordinary course of officers, directors, employees or agents of Companybusiness; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the 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 the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company's subsidiaries; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which the 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 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 Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (vii) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which provide source code to any third party for any product or technology that is material to Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into and its subsidiaries taken as a commercial relationship with, another personwhole; (gviii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (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, other than accounts receivables and payables in the ordinary course of business; (hx) any material settlement agreement relating entered into within five (5) years prior to any claim or suit;the date of this Agreement; or (ixi) any real property lease covering more than 20,000 square feet; (j) any other agreement, contract or commitment obligating that has a value of $300,000 or more in any individual case. (b) Neither the Company nor any of its subsidiaries, nor to make the Company's knowledge any payments based on other party to a Company Contract (i) as defined below), is in breach, violation or default under, and neither the number Company nor any of users accessing its subsidiaries has received written notice that it has breached, violated or defaulted under, any website operated by of the material terms or conditions of any of the agreements, contracts or commitments to which the Company or any of its subsidiaries is a party or by which it is bound that are required to be set forth in the Company Disclosure Letter (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "Company Contract") in such a manner as would permit any ---------------- other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As (a) Except as set forth in Schedule 2.12(a) of the Stockholder Disclosure Letter, as of the date hereof, neither Company the Company, WW nor any of its subsidiaries Subsidiary has, is a party to or to, is bound by:, and the Business is not the beneficiary of, or subject to, any of the following (those agreements, arrangements, contracts or commitments to which the Business is subject, but to which the Company, WW or the Subsidiaries is not, as between the Stockholder or its subsidiaries (other than the Company, WW and the Subsidiaries) and the Company, WW and the Subsidiaries, are clearly marked as such on Schedule 2.12(a)): (i) any collective bargaining agreements, (ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, (iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, (iv) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directors, other than those that are terminable by Company individual consultant or salesperson or any of its subsidiaries on no more than thirty (30) days' notice without liability consulting or financial obligation to Company, (ii) any such sales agreement, contract or commitment with under which any employee, consultant, shareholder firm or other person that will result in any obligation of Company organization provides services to the Company, WW 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;Subsidiary, (bv) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation right rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;, (cvi) any agreement or plan to issue, grant, deliver or sell or authorize, or that proposes the issuance, grant, delivery or sale of, or to purchase or that proposes the purchase of, any shares, or any rights attached to any shares, in the Company, WW or any Subsidiary or any securities convertible into or exchangeable for shares in the Company, WW or any Subsidiary, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any shares in the Company, WW or any Subsidiary or other convertible securities, (vii) any fidelity or surety bond or completion bond, (viii) any lease of personal property requiring payments over the term of such lease or series of related leases individually in excess of $200,000 or any lease of real property, (ix) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company;guaranty, (dx) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company the Company, WW or any of its subsidiaries Subsidiary to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rights;person, (exi) any agreement, contract or commitment currently in force relating to the disposition capital expenditures or acquisition by Company involving future payments or any a series of its subsidiaries after the date related payments in excess of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;$100,000, (fxii) any agreement, contract or commitment containing exclusivity provisions pursuant relating to which Company has agreed not to purchase the goods (other than local grocery products) disposition or services ofacquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's or WW's business, or enter into a commercial relationship with, another person;as applicable, (gxiii) 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 (ix) hereof, (xiv) any purchase order or contract for the purchase of raw materials involving $50,000 or more, (xv) any construction contracts involving future payments or a series of related payments in excess of $50,000, (xvi) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use of distribution of the Company's or WW's products, technologies or services; (hxvii) any settlement distribution, joint marketing or development agreement relating to that includes any claim provision granting any person a right of first refusal, right of first negotiation or suit;exclusive, "most favored nation" or preferential placement or other preferential rights, (ixviii) any real property lease covering more than 20,000 square feet;agreement pursuant to which the Company, WW or any Subsidiary has developed for and/or delivered to or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property, (jxix) any agreement, contract or commitment obligating Company to make for the purchase of advertising, (xx) any payments based on other agreement, contract or commitment that involves $100,000 or more or is not cancelable without penalty within thirty (i30) days. (b) Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the number lapse of users accessing time, giving of notice, or both, as are all noted in Schedule 2.12(b) of the Stockholder Disclosure Letter, neither the Company, WW nor any website operated by Company or Subsidiary nor the Stockholder nor any of its subsidiaries has materially breached, violated or defaulted under, or received written notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on Schedule 2.12(a) of the Stockholder Disclosure Letter or Schedule 2.11(g) of the Stockholder Disclosure Letter (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "Contract"). Each Contract is in full force and effect (assuming the Contracts have been duly authorized, executed and delivered by the respective other parties thereto) and is not subject to any default thereunder of which the Stockholder has Knowledge by any party obligated to the Company, WW or any Subsidiary pursuant thereto.

Agreements, Contracts and Commitments. As Except as set forth in Section 2.16 and Section 2.2(b) of the date hereofCompany Shareholders Disclosure Letter, neither the Company nor any of its subsidiaries is not a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's ’s Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty ninety (3090) days' days notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination payobligation; (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 guaranty not entered into in the ordinary course of officers, directors business other than indemnification agreements between the Company and any of its officers or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;enterprise; or (f) any material joint marketing or development agreement. The Company, or to the Company Shareholders' knowledge any other party to a Company Contract (as defined herein), 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 any of the agreements, contracts or commitments to which the Company is a party or by which it is bound of the type described -12- in clauses (a) through (f) above (any such agreement, contract or commitment containing exclusivity provisions pursuant commitment, a “COMPANY CONTRACT”) in such a manner as would permit any other party to which cancel or terminate any such Company has agreed not to purchase the goods (other than local grocery products) or services ofContract, or enter into a commercial relationship withwould permit any other party to seek damages, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating which would be reasonably likely to be material to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (Company.

Agreements, Contracts and Commitments. As of The Company and its Subsidiaries are not a party to, nor are the date hereof, neither Company nor and its Subsidiaries or any of its subsidiaries is a party to their assets or is properties bound by: (ia) any collective bargaining agreements, (b) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, (c) any employment, severance or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directors, other than those that are terminable by Company individual consultant or any of its subsidiaries on no more than thirty (30) days' notice without liability salesperson or financial obligation to Company, (ii) any such consulting or sales agreement, contract or commitment with any employee, consultant, shareholder a firm 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;organization, (bd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right rights plan or stock purchase planplan (other than the Plans and the Change of Control Letters disclosed in Section 2.5(ii) of the Company Disclosure Schedules), 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 fidelity or surety bond or completion bond, (f) any lease of indemnification personal property having a value individually in excess of officers$50,000, (g) any agreement, directors contract or employees commitment of Company indemnification, guaranty, support, assumption or endorsement of, or any guaranty similar commitment or understanding with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of third party indebtedness any other person or of obligations of officers, directors, employees or agents of Company;entity, (dh) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries a Subsidiary to engage in any line of business in any geographic area or to compete with any person person, or granting to any person any interest in confidentiality, secrecy or non-disclosure agreement, contract or commitment imposing confidentiality, secrecy or non-disclosure obligations on the Company's distribution rights;, (ei) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;$50,000 per year, (fj) any agreement, contract or commitment containing exclusivity provisions pursuant relating to which Company has agreed not to purchase the goods (other than local grocery products) disposition or services of, acquisition of assets or enter into a commercial relationship with, another person;any interest in any business enterprise outside the ordinary course of business, (gk) any mortgages, indentures, guarantees, loans or credit agreements, security agreements agreements, guaranties or other agreements or instruments relating to the borrowing of money or extension of credit;credit or any leasing transaction of the type required to be capitalized in accordance with GAAP, (hl) any settlement agreement relating purchase order or contract for the purchase of raw materials to any claim pay $50,000 or suit;more, other than purchase orders for TSOPs, flex-frames, solder, solvents, printed wiring boards, and other items purchased in the ordinary course of business consistent with past practice, (im) any real property lease covering more than 20,000 square feet;development or construction agreements, contracts or commitments, (jn) any distribution, joint marketing or development agreement, contract or commitment, (o) any agreement, contract or commitment obligating Company to make indemnify, hold harmless or defend any payments based on other person with respect to any assertion of personal injury, damage to property or Intellectual Property infringement, misappropriation or violation or warranting the lack thereof, (ip) any other agreement, contract or commitment not referred to above that involves payment of, or an obligation to pay, $50,000 per year or more and is not cancelable without penalty within thirty (30) days, or (q) any material agreement, contract or commitment with any person with whom the number of users accessing any website operated by Company or any its Subsidiaries does not deal at arm’s length within the meaning of its subsidiaries (whether measured by registrationsthe Code other than agreements, click-throughs contracts or purchases by such userscommitments provided for in Sections 2.12(b) or (iithrough 2.12(d) revenues generated by purchases on any such website; or (above.

Agreements, Contracts and Commitments. As of the date hereof, neither Neither Company nor any of its ------------------------------------- subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyMCS's Board of Directors, other than those that are terminable by Company MCS or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination payMCS; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations software products in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company MCS or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company MCS 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 Company MCS has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than CompanyMCS's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which MCS 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 MCS 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 MCS 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 containing exclusivity provisions pursuant currently in force to which Company has agreed not provide source code to purchase the goods (other than local grocery products) any third party for any product or services of, or enter into technology that is material to MCS and its subsidiaries taken as a commercial relationship with, another personwhole; (gh) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any MCS product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any MCS 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 NetIQ; (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; (hj) any settlement agreement relating entered into within five (5) years prior to any claim or suit;the date of this Agreement; or (ik) any real property lease covering more than 20,000 square feet; (j) any other agreement, contract or commitment obligating Company that has a value of $2,000,000 or more individually, other than the transactions contemplated by the LOI. Neither MCS nor any of its subsidiaries, nor to make MCS's knowledge any payments based on other party to a MCS Contract (i) as defined below), is in breach, violation or default under, and neither MCS nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by Company of the agreements, contracts or commitments to which MCS or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the MCS Schedules (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "MCS Contract") in such a manner as would permit any other party to cancel or terminate any such MCS 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).

Agreements, Contracts and Commitments. As of Except as set forth in the date hereofTencor Schedules, neither Company Tencor nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyTencor's Board of Directors, other than those that are terminable by Company Tencor or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation the extent general principles of Company wrongful termination law may limit Tencor's or any of its subsidiaries subsidiaries' ability 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 payterminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in the ordinary course of officers, directors or employees of Company business other than indemnification agreements between Tencor or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company Tencor or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;enterprise; or (f) any material joint marketing or development agreement. Neither Tencor nor any of its subsidiaries, contract nor to Tencor's knowledge any other party to a Tencor Contract (as defined below), has breached, violated or commitment containing exclusivity provisions pursuant defaulted under, or received notice that it has breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company Tencor or any of its subsidiaries is a party or by which it is bound of the type described in clauses (whether measured by registrations, click-throughs or purchases by such usersa) or through (iil) revenues generated by purchases on above (any such website; agreement, contract or (commitment, a "Tencor Contract") in such a manner as would permit any other party to cancel or terminate any such Tencor Contract, or would permit any other party to seek damages, which would be reasonably likely to be material to Tencor.

Agreements, Contracts and Commitments. As of Except as shown on the date hereofits balance sheet, neither Company nor any of its subsidiaries the Vendor is not a party to or is bound by: otherwise subject to any or written (i) any collective bargaining agreement; (ii) commitments for the employment or consulting agreement, contract or commitment with of any officer or director employee which is not terminable (without liability) on a 30 days (or higher level less) notice; (iii) profit sharing, bonus, deferred compensation, stock option, severance pay, pension, retirement or similar plans or agreements providing employee benefits; (iv) mortgages, indentures, notes or member other agreements, contracts commitments or instruments for or relating to any borrowing of Company's Board money on the deferred purchase price of Directorsproperty; (v) guarantees of any obligations for the borrowing of money or otherwise, or any other agreement of guarantee or indemnification, excluding endorsements made for collection in the ordinary course of business; (vi) agreements, contracts or commitments for the purchase or sale of any assets other than those that are terminable by Company in the ordinary course of business or for the grant of any preferential rights to purchase any of its subsidiaries on no more than thirty assets, properties or rights; (30vii) days' notice without liability or financial obligation to Company114 agreements, (ii) any such agreement, contract contracts or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment instruments containing any covenant limiting in any respect the right of Company or any of its subsidiaries freedom to engage in any line of business in any geographic area of the world or to compete with any person or granting to any person any interest in Company's distribution rights; entity or which constitute an undue material burden on its business, financial condition or properties, (eviii) any agreementcontinuing agreements, contract contracts or commitment currently in force commitments for future purchase of materials, supplies or equipment, (ix) agreements, contracts or commitments relating to the disposition issuance of any securities or capital expenditures involving future payments; (x) agreements, contracts or commitments relating to the acquisition by Company of the assets or a substantial part of the assets or capital stock of any business enterprise; (xi) agreements, contracts or commitments with any officer, director, 5% shareholder of the Vendor or any "associate" or affiliate thereof as the term is defined in Rule 405 of its subsidiaries after the date Securities Act; (xii) continuing agreements, contracts, or commitments for the future sale of this Agreement products or rendering of a material amount of assets services by the Vendor; or (xiii) agreements, contracts, commitments or other instruments not entered into in the ordinary course Course of business business. Except for debt payments to the creditors and in the amounts set forth in the attached Schedule B, the Vendor is not in default ▇▇▇▇▇▇ any franchise, contract, agreement, lease or pursuant other document to which Company has it is a party or by which its properties are bound; and there have been no claims of defaults and there are no existing facts or conditions known to the Vendor or to its shareholders which, if continued or on notice, will result in a default under the contracts, agreements, leases or other documents to which the Vendor is a party or by which its property may be bound and which would adversely affect its business properties. Except as otherwise contemplated or permitted by this Agreement, between the date hereof and the closing date, the Vendor will not, without the prior consent of the Purchaser, which consent shall not be unreasonably withheld, amend, in any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services ofrespect, or enter into a commercial relationship withinto, another person; (g) any mortgagescontract, indenturesagreement, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to instrument of the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (type described in this section.

Agreements, Contracts and Commitments. As Except as set forth in the USWeb Schedules, as of the date hereof, neither Company USWeb nor any of its subsidiaries is a party to or is bound by: : (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyUSWeb's Board of Directors, other than those that are terminable by Company USWeb or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation the extent general principles of Company wrongful termination law may limit USWeb's or any of its subsidiaries subsidiaries' ability 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; terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; ; (c) any agreement of indemnification or guaranty not entered into in the ordinary course of officers, directors or employees of Company business other than indemnification agreements between USWeb or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; ; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company USWeb or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; ; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; enterprise; or (f) any material joint marketing or development agreement. Neither USWeb nor any of its subsidiaries, contract nor to USWeb's knowledge any other party to a USWeb Contract (as defined below), has breached, violated or commitment containing exclusivity provisions pursuant defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company USWeb or any of its subsidiaries is a party or by which it is bound of the type described in clauses (whether measured by registrations, click-throughs or purchases by such usersa) or through (iif) revenues generated by purchases on above (any such website; agreement, contract or (commitment, a "USWeb Contract") in such a manner as would permit any other party to cancel or terminate any such USWeb Contract, or would permit any other party to seek damages, which would be reasonably likely to be material to USWeb. 24

Agreements, Contracts and Commitments. As of Except as set forth in the date hereof------------------------------------- Fractal Schedules, neither Company Fractal nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyFractal's Board of Directors, other than those that are terminable by Company Fractal or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation the extent general principles of Company wrongful termination law may limit Fractal's or any of its subsidiaries subsidiaries' ability 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 payterminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in the ordinary course of officers, directors or employees of Company business other than indemnification agreements between Fractal or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company Fractal or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;enterprise; or (f) any material joint marketing or development agreement. Neither Fractal nor any of its subsidiaries, contract nor to Fractal's knowledge any other party to a Fractal Contract (as defined below), has breached, violated or commitment containing exclusivity provisions pursuant defaulted under, or received notice that it has breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company Fractal or any of its subsidiaries is a party or by which it is bound of the type described in clauses (whether measured by registrations, click-throughs or purchases by such usersa) or through (iil) revenues generated by purchases on above (any such website; agreement, contract or (commitment, a "FRACTAL CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Fractal Contract, or would permit any other party to seek damages, which would be reasonably likely to be material to Fractal.

Agreements, Contracts and Commitments. As Except as disclosed in Section 2.19 of the date hereofCompany Schedule, neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness or indemnification entered into in connection with the sale, license, distribution and development of obligations software products and advertising in the Ordinary Course of officers, directors, employees or agents of CompanyBusiness; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course Ordinary Course of business Business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which 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 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 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 containing exclusivity provisions pursuant currently in force to which provide source code to any third party for any product or technology that is material to Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into and its subsidiaries taken as a commercial relationship with, another personwhole; (gh) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (h) credit or granting any settlement agreement relating to Lien on any claim assets or suit; (i) properties of the Company or any real property lease covering more than 20,000 square feetof its subsidiaries; (j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; (k) any other agreement, contract or commitment obligating that has a value of $25,000 or more individually; (l) any agreement (or group of related agreements) for the lease of personal property to or from any person that involves aggregate annual payments of more than $25,000; (m) any agreement under which the consequences of a default or termination could reasonably be anticipated to have a Material Adverse Effect on the Company; (n) any agreement (or group of related agreements) for the purchase or sale of commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $25,000; (o) any agreement for the purchase of supplies, components, products or services from single source suppliers, custom manufacturers or subcontractors that involves aggregate annual payments of more than $25,000; (p) any agreement concerning a partnership or joint venture; (q) any agreement with any Company stockholder or any of such Company stockholder's Affiliates (other than the Company) or with any Affiliate of the Company; (r) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers or employees; (s) any collective bargaining agreement; (t) any executory agreement under which the Company has advanced or loaned any amount to make any of its directors, officers, and employees; (u) any advertising services, e-commerce or other agreement involving the promotion of products and services of third parties by the Company; (v) any executory agreement pursuant to which the Company is obligated to provide maintenance, support or training for its services or products; (w) any revenue or profit participation agreement which involves aggregate annual payments based on of more than $25,000; and (ix) any license, agreement or other permission which the number Company or any Affiliate of users accessing the Company has granted to any website operated by third party with respect to any of the Intellectual Property used in the Company's business. Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as set forth in Section 2.16 and Section 2.2(b) of the date hereofCompany Shareholders Disclosure Letter, neither the Company nor any of its subsidiaries is not a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of the Company's ’s Board of Directors, other than those that are terminable by the Company or any of its subsidiaries on no more than thirty ninety (3090) days' days notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination payobligation; (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 guaranty not entered into in the ordinary course of officers, directors business other than indemnification agreements between the Company and any of its officers or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;enterprise; or (f) any material joint marketing or development agreement. The Company, or to the Company Shareholders' knowledge any other party to a Company Contract (as defined herein), 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 any of the agreements, contracts or commitments to which the Company is a party or by which it is bound of the type described in clauses (a) through (f) above (any such agreement, contract or commitment containing exclusivity provisions pursuant commitment, a “Company Contract”) in such a manner as would permit any other party to which cancel or terminate any such Company has agreed not to purchase the goods (other than local grocery products) or services ofContract, or enter into a commercial relationship withwould permit any other party to seek damages, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating which would be reasonably likely to be material to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (Company.

Agreements, Contracts and Commitments. As Except as set forth in Section 4.18 of the Company Schedule, as of the date hereofof this Agreement, neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract Contract or commitment with any officer or officer, director or higher level employee of Company or member any of Company's Board of Directorsits subsidiaries (whether on a full-time, part-time or other basis), other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice at will without liability or financial obligation to Company, Company (ii) any such agreement, contract or commitment with any other than the obligation to pay accrued but unpaid salary and earned but unpaid leave following an employee, consultant, shareholder or other person that will result in any obligation ’s termination 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 payemployment); (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, indemnification by the occurrence Company or its subsidiaries or any power of attorney or guaranty other than any agreement of indemnification entered into in connection with the transactions contemplated by this Agreement sale of products or license of technology in the value Ordinary Course of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this AgreementBusiness; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (ed) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course Ordinary Course of business Business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's ’s subsidiaries; (e) any dealer, distributor, joint marketing or development agreement under which Company or any of its subsidiaries have continuing obligations to jointly market any product, technology or service, or any agreement pursuant to which Company or any of its subsidiaries have continuing obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries; (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which license any third party to manufacture or reproduce any Company has agreed not product, service or technology or any agreement, contract or commitment to purchase the goods (other than local grocery resell or re-distribute any Company products) , service or services of, or enter into a commercial relationship with, another persontechnology; (g) any agreement relating to the licensing of source code, other than the licensing of sample source code as such term is used in the Company’s user licensing agreements; (h) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries or extension of credit (whether measured by registrationsother than customer accounts receivable owing to Company or any of its subsidiaries in the Ordinary Course of Business and payable or dischargeable in accordance with customary trade terms); (i) any agreement (or group of related agreements) for the lease of personal property to or from any person that involves aggregate annual payments of more than $10,000; (j) any agreement (or group of related agreements) for the purchase or sale of raw materials, click-throughs commodities, supplies, products, or purchases by such usersother personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $25,000; (k) any agreement for the purchase of supplies, components, products or services from single source suppliers, custom manufacturers or subcontractors that involves aggregate annual payments of more than $25,000; (iil) revenues generated by purchases any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in or under which a security interest has been imposed on any of its assets, tangible or intangible; (m) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees; (n) any agreement under which the consequences of a default or termination could have a Material Adverse Effect; (o) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements; (p) any agreement pursuant to which Company is obligated to provide maintenance, support or training for its products, other than in the Ordinary Course of Business; (q) any agreement obligating the Company or any of its subsidiaries to deliver future product enhancements other than in the Ordinary Course of Business or containing a “most favored nation” pricing clause; (r) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $25,000 or which is expected to continue for more than one (1) year from the date hereof, other than agreements relating to the sale and licensing of Company’s products, services or technology, and licenses to use third party software entered into in the Ordinary Course of Business. Company has delivered or made available to Parent a correct and complete copy of each written agreement required to be listed in Section 4.18 of the Company Schedule and a written summary setting forth the terms and conditions of each oral agreement required to be listed in Section 4.18 of the Company Schedule. With respect to each such websiteagreement, and with such other exceptions as would not have, individually or in the aggregate, a Company Material Adverse Effect: (A) the agreement is legal, valid, binding, enforceable, and in full force and effect in all respects with regard to Company; (B) neither Company nor, to Company’s Knowledge, any other party is in breach or default, and no event has occurred, which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; (C) neither Company nor, to Company’s Knowledge any other party to the agreement has repudiated any provision of the agreement; (D) there are no disputes or forbearance programs in effect; (E) the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms; (F) the validity, effectiveness and continuation will not be materially adversely affected by the Merger and the transactions contemplated by this Agreement; and (G) no party has any defense, set off or counterclaim or has exercised any option granted to it to cancel, terminate or shorten the term. Section 4.18 of the Company Schedule contains a true, complete and correct list of each bid or proposal (or series of related bids or proposals) currently being considered, promoted or negotiated by the Company which, if accepted, would be required to be listed in Section 4.18 of the Company Schedule if effective as of the date hereof.

Agreements, Contracts and Commitments. As of Except as required by applicable law, contemplated by this Agreement, or as set forth on Schedule 3.13, the date hereof, neither Company nor any of its subsidiaries is not a party to or to, and is not bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination paycollective bargaining agreements; (b) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations; (c) any stock option or stock purchase plan or arrangement, stock appreciation, bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements; (d) any agreement, contract, or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise; (e) any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement, under which a firm or other organization provides services to the Company not terminable by the Company on thirty (30) days notice without liability; (f) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation right rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (cg) any fidelity or surety bond or completion bond; (h) except as listed on Schedule 3.13(h), any agreement or group of related agreements for the lease of personal property having a value individually in excess of Ten Thousand Dollars ($10,000) to or from any Person; (i) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Companyguaranty; (dj) any agreement, contract or commitment agreement containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rightsPerson; (ek) any agreement, contract or commitment currently in force agreement relating to the disposition purchase of materials or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets capital expenditures and involving future payments not incurred in the ordinary and usual course of business or pursuant to which Company has any material ownership interest in any corporationbusiness, partnership, joint venture or other business enterprise other than Company's subsidiariesconsistent with past practice; (fl) any agreementexcept as listed on Schedule 3.13(l), contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or extension of creditcredit to the Company; (hm) except as listed on Schedule 3.13(m), any settlement agreement relating to any claim or suitconcerning confidentiality; (in) any real property lease covering more than 20,000 square feetconstruction contracts; (jo) any distribution, joint marketing or development agreement; (p) any agreement pursuant to which the 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 (q) to the extent not reported on the Company Balance Sheet, any other agreement that involves payment by the Company not incurred in the ordinary and usual course of business, consistent with past practice or which is not cancelable without penalty within thirty (30) days. The Company has not breached, violated, or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment obligating Company required to make be set forth on Schedule 3.12(c), Schedule 3.12(d), Schedule 3.12(e), Schedule 3.12(f), or Schedule 3.13 (any payments based such agreement, contract or commitment identified on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured the foregoing Schedules, a "Contract"). Each Contract is in full force and effect and, except as otherwise disclosed in Schedule 3.13, is not subject to any default thereunder of which the Company has knowledge by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (party obligated to the Company pursuant thereto.

Agreements, Contracts and Commitments. As of the date hereof, neither Company Neither OrCAD nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyOrCAD's Board of Directors, other than those that are terminable by Company OrCAD or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation the extent general principles of Company wrongful termination law may limit OrCAD's or any of its subsidiaries subsidiaries' ability 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 payterminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than: (i) any agreement of indemnification or guaranty entered into in the ordinary course of business, (ii) any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business, (iii) any agreement of indemnification entered into in connection with services performed in the ordinary course of business, and (iv) any indemnification agreement between OrCAD or any of its subsidiaries and any of their respective officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Companyemployees; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company OrCAD or any of its subsidiaries to engage in any line of business in any geographic area which is material to OrCAD and its subsidiaries taken as a whole or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company OrCAD or any of its subsidiaries or subsequent parent or sister companies after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company OrCAD has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiariesenterprise; (f) any joint marketing or development agreement currently in force under which OrCAD 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 90 days or less, or any agreement pursuant to which OrCAD 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 OrCAD or any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (g) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating provide source code to any claim third party for any product or suit; technology that is material to OrCAD and its subsidiaries taken as a whole, except for (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company pursuant to make which source code is provided solely for maintenance purposes, and (ii) any payments based on source code escrow agreement entered into in the ordinary course of business that solely contains provisions relating to the release of source code if OrCAD and/or any of its subsidiaries ceases to do business or fails to provide appropriate maintenance; or (ih) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any OrCAD product, service or technology except as a distributor in the number normal course of users accessing business. Each OrCAD Contract (as defined below) is in full force and effect. Neither OrCAD nor any website operated by Company of its subsidiaries, nor to OrCAD's knowledge any other party to an OrCAD Contract, is in breach, violation or default under, and neither OrCAD nor any of its subsidiaries has received 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 OrCAD or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the OrCAD Schedules pursuant to clauses (whether measured by registrations, click-throughs a) through (h) above or purchases by such users) or pursuant to Section 2.9 hereof (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "ORCAD CONTRACT") in such a manner as would permit any other party to cancel or terminate any such OrCAD Contract, or would permit any other party to seek damages, which would be reasonably likely to exceed $1 million (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date hereof, neither Neither Company nor any ------------------------------------- of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyNetIQ's Board of Directors, other than those that are terminable by Company NetIQ or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination payNetIQ; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations software products in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company NetIQ or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company NetIQ 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 Company NetIQ has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than CompanyNetIQ's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which NetIQ 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 NetIQ 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 NetIQ 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 containing exclusivity provisions pursuant currently in force to which Company has agreed not provide source code to purchase the goods (other than local grocery products) any third party for any product or services of, or enter into technology that is material to NetIQ and its subsidiaries taken as a commercial relationship with, another personwhole; (gh) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any NetIQ product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any NetIQ 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 MCS; (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; (hj) any settlement agreement relating entered into within five (5) years prior to any claim or suit;the date of this Agreement; or (ik) any real property lease covering more than 20,000 square feet; (j) any other agreement, contract or commitment obligating Company that has a value of $2,000,000 or more individually, other than in the event of an assignment of the LOI pursuant to make Section 5.20, the transactions contemplated by the LOI. Neither NetIQ nor any payments based on of its subsidiaries, nor to NetIQ's knowledge any other party to a NetIQ Contract (i) as defined below), is in breach, violation or default under, and neither NetIQ nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by Company of the agreements, contracts or commitments to which NetIQ or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the NetIQ Schedules (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "NetIQ Contract") in such a manner as would permit any other party to cancel or terminate any such NetIQ 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).

Agreements, Contracts and Commitments. As of the date hereof(a) Except as set forth on Schedule 2.17(a), neither Company nor any of its subsidiaries is a party to or is bound by: (i) any written employment or consulting agreement, contract or commitment with any officer or director or higher level officer, director, Company employee or member of the Company's Board of DirectorsDirectors (sometimes, the "Company Board"), or any service, operating or management agreement or arrangement with respect to any of its properties (whether leased or owned), other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ciii) any agreement of indemnification of officers, directors or employees of Company or any guaranty guaranty, other than maintenance agreements and product warranties, or agreements of third party indebtedness or indemnification entered into in connection with the sale of obligations products in the ordinary course of officers, directors, employees or agents business in excess of Company$50,000; (div) any material agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or entity or granting to any person any interest in Company's exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material an amount of assets in excess of $100,000 not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (fvi) any dealer, distributor, joint marketing or development agreement currently in force under which 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 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 Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (vii) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which license to or from any third party to manufacture or reproduce any Company has agreed not product, service or technology or any agreement, contract or commitment currently in force to purchase sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the goods normal course of business cancelable without penalty upon notice of ninety (other than local grocery products90) days or services of, or enter into a commercial relationship with, another personless and substantially in the form previously provided to Parent; (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 Company and its subsidiaries taken as a whole; (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; (hx) any material settlement agreement relating to any claim or suit;under which Company has ongoing obligations; or (ixi) any real property lease covering more than 20,000 square feet;agreement with a customer of the Company involving in excess of $100,000 in any 12 month period. (jb) Neither Company nor any agreementof its subsidiaries, contract nor to Company's knowledge any other party to a Company Contract (as defined below), is in breach, violation or commitment obligating default under, and neither 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 make any payments based on (i) the number of users accessing any website operated by which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate). Company has made available to Parent true and correct copies of any contracts Company may have with its top ten customers.

Agreements, Contracts and Commitments. As of the date hereof, neither Neither Company nor any ------------------------------------- of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyMCS's Board of Directors, other than those that are terminable by Company MCS or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination payMCS; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations software products in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company MCS or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company MCS 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 Company MCS has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than CompanyMCS's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which MCS 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 MCS 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 MCS 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 containing exclusivity provisions pursuant currently in force to which Company has agreed not provide source code to purchase the goods (other than local grocery products) any third party for any product or services of, or enter into technology that is material to MCS and its subsidiaries taken as a commercial relationship with, another personwhole; (gh) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any MCS product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any MCS 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 NetIQ; (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; (hj) any settlement agreement relating entered into within five (5) years prior to any claim or suit;the date of this Agreement; or (ik) any real property lease covering more than 20,000 square feet; (j) any other agreement, contract or commitment obligating Company that has a value of $2,000,000 or more individually, other than the transactions contemplated by the LOI. Neither MCS nor any of its subsidiaries, nor to make MCS's knowledge any payments based on other party to a MCS Contract (i) as defined below), is in breach, violation or default under, and neither MCS nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by Company of the agreements, contracts or commitments to which MCS or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the MCS Schedules (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "MCS Contract") in such a manner as would permit any other party to cancel or terminate any such MCS 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).

Agreements, Contracts and Commitments. As of Except as set forth in the date hereofSPI Schedules, neither Company SPI nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanySPI's Board of Directors, other than those that are terminable by Company SPI or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation the extent general principles of Company wrongful termination law may limit SPI's or any of its subsidiaries subsidiaries' ability 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 payterminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in the ordinary course of officers, directors or employees of Company business other than indemnification agreements between SPI or any guaranty of third party indebtedness its subsidiaries and any of its officers or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company SPI or any of its subsidiaries to engage in any line of business (except for license agreements entered into in any geographic area the ordinary course of business with SPI as the licensee, which limit SPI's activities thereunder to the scope of the license) or to compete with any person or granting any exclusive distribution rights to any person any interest in Company's distribution rightsa third party; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiariesenterprise; (f) any material joint marketing or development agreement; (g) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which Company has agreed not to purchase the goods (other than local grocery products) provide or services ofreceive source code for any product, service or enter into a commercial relationship with, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credittechnology except for maintenance purposes; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company currently in force to make license any payments based on third party to manufacture or reproduce any SPI product, service or technology except as a distributor in the normal course of business. Neither SPI nor any of its subsidiaries, nor to SPI's knowledge any other party to an SPI Contract (i) as defined below), has breached, violated or defaulted under, or received notice that it has breached violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by Company of the agreements, contracts or commitments to which SPI or any of its subsidiaries is a party or by which it is bound of the type described in clauses (whether measured by registrations, click-throughs or purchases by such usersa) or through (iih) revenues generated by purchases on above (any such website; agreement, contract or (commitment, an "SPI CONTRACT") in such a manner as would permit any other party to seek damages, which would be reasonably likely to be material to SPI, or would permit any other party to cancel or terminate any such SPI Contract.

Agreements, Contracts and Commitments. As Except as set forth in Section ------------------------------------- 2.16 of the date hereofCompany Schedule, neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any executive officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any material agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness or indemnification entered into in the ordinary course of obligations of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment that directly or indirectly prevents Company or any of its subsidiaries from providing services to or performing work for competitors of any customer of Company or any other similar restriction imposed on Company by a customer. (f) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (fg) any customer, dealer, distributor, marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to provide 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 entered into outside the ordinary course pursuant to which Company or any of its subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less; (h) any agreement, contract or commitment containing exclusivity provisions pursuant currently in force and entered into outside the ordinary course of business to which provide source code to any third party for any product or technology that is material to Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into and its subsidiaries taken as a commercial relationship with, another personwhole; (gi) [Intentionally left blank.] (j) 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 $2,000,000 individually; (hk) any material settlement agreement relating entered into within two (2) years prior to any claim or suitthe date of this Agreement; (il) any real property lease covering agreement entered into in the ordinary course of business providing for revenue to Company derived from North America of more than 20,000 square feet;$3,000,000; or (jm) any other agreement, contract or commitment obligating that has a value of $5,000,000 or more individually other than in the ordinary course of business. Neither Company nor any of its subsidiaries, nor to make Company's knowledge any payments based on other party to a Company Contract (i) as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of Except as otherwise set forth in the date hereofCompany Schedules, neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' days notice without liability or financial obligation obligation, except to the extent general principles of wrongful termination law may limit Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company 's or any of its subsidiaries subsidiaries' ability 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 payterminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations software products in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (f) any agreementjoint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, contract technology or commitment containing exclusivity provisions service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which Company has agreed or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not to purchase the goods (other than local grocery products) be owned, in whole or services ofin part, by Company or enter into a commercial relationship with, another person;any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; or (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating currently in force to license any third party to manufacture or reproduce any Company product, service or technology except as a distributor in the normal course of business. Neither Company nor any of its subsidiaries, nor to make Company's knowledge any payments based on other party to a Company Contract (i) as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedules pursuant to clauses (whether measured by registrations, click-throughs a) through (h) above or purchases by such users) or pursuant to Section 2.9 hereof (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As (a) Except as set forth on Section 2.14(a) of the date hereofDisclosure Letter, neither the Company nor any of its subsidiaries is a party to does not have, or is not bound by: (i) any contract, license or agreement to which the Company is a party (A) with respect to Company Intellectual Property licensed or transferred to any third party or (B) pursuant to which a third party has licensed or transferred any Intellectual Property to the Company, with a value or cost in excess of $10,000; (ii) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directors, other than those that are terminable by Company individual consultant or any of its subsidiaries on no more than thirty (30) days' notice without liability salesperson or financial obligation to Company, (ii) any such consulting or sales agreement, contract or commitment with any employee, consultant, shareholder a firm 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 payorganization; (biii) 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; (civ) any agreement of indemnification of officers, directors fidelity or employees of Company surety bond or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Companycompletion bond; (dv) any lease of personal property with fixed annual rental payments in excess of $10,000; (vi) any contract, license or agreement between the Company and any third party wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, hold harmless or otherwise assume or incur any obligation or liability with respect to the infringement or misappropriation by the Company or such third party of the Intellectual Property of any third party; (vii) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of the Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rightsperson; (eviii) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries$10,000; (fix) any agreement, contract or commitment containing exclusivity provisions pursuant relating to which Company has agreed not to purchase the goods (other than local grocery products) disposition or services of, acquisition of assets or enter into a commercial relationship with, another personany interest in any business enterprise outside the ordinary course of the Company's business; (gx) 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; (hxi) any settlement agreement relating to any claim purchase order or suitcontract for the purchase of materials involving $10,000 or more; (ixii) any real property lease covering more than 20,000 square feetconstruction contracts; (jxiii) any distribution, joint marketing or development agreement; or (xiv) any other agreement, contract or commitment obligating that involves $15,000 or more or is not cancelable without penalty within thirty (30) days. (b) Except as disclosed in Section 2.14(b) of the Disclosure Letter, the Company to make any payments based on (i) the number of users accessing any website operated by Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of its subsidiaries the terms or conditions of any agreement, contract, license or commitment to which it is a party or by which it is bound (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract, license or (commitment, a "Contract"), and the Company is not aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect, and, to the knowledge of the Company, except as otherwise disclosed in Section 2.14(b) of the Disclosure Letter, all other parties to each Contract are in compliance with, and have not breached any term of, such Contract. 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 thereunder in connection with the Merger or to remain in effect without modification after the Closing. Following the Effective Time, the Company will be permitted to exercise all of the Company's rights under the Contracts to the same extent the Company would have been able to had the Merger not occurred and 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.

Agreements, Contracts and Commitments. As of the date hereof, neither (a) Neither Company nor any of its subsidiaries Subsidiaries is a party to or is bound by: (i) any employment or consulting agreement, contract or commitment with any executive officer or director or higher level employee or member of Company's the Board of DirectorsDirectors of Company, other than those that are terminable by Company or any of its subsidiaries Subsidiaries on no more than thirty (30) days' notice without liability Liability or financial obligation to Company, ; (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (ciii) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations products or services in the ordinary course of officers, directors, employees or agents of Companybusiness; (div) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries Subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (ev) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company 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 Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;its Subsidiaries; or (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (gvi) 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;. (hb) Neither Company nor any settlement agreement relating of its Subsidiaries, nor to the knowledge of Company any claim other party to a Company Contract (as defined below), is in breach, violation or suit; (i) default under, and neither Company nor any real property lease covering more than 20,000 square feet; (j) of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any agreementof the material terms or conditions of any of the agreements, contract contracts or commitment obligating Company commitments to make any payments based on (i) the number of users accessing any website operated by which Company or any of its subsidiaries Subsidiaries is a party or by which Company or any of its Subsidiaries is bound that are required to be disclosed in the Company Schedules pursuant to this Agreement (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other material remedies (for any or all of such breaches, violations or defaults, or all of them in the aggregate).

Agreements, Contracts and Commitments. As of the date hereof, neither Neither Company nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by Company or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to the Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations software products or services in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by 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 Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which 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 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 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 containing exclusivity provisions pursuant currently in force to which provide source code to any third party for any product or technology that is material to Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into and its subsidiaries taken as a commercial relationship with, another personwhole; (gh) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment obligating under which Company or a subsidiary is contractually obligated to make or entitled to receive payments of $250,000 or more individually. Neither Company nor any payments based on of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (i) as defined below), is in breach, violation or default under, and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by of the agreements, contracts or commitments to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Schedule (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As (a) Except as set forth in Schedule 2.12(a) of the Stockholder Disclosure Letter, as of the date hereof, neither Company the Company, WW nor any of its subsidiaries Subsidiary has, is a party to or to, is bound by:, and the Business is not the beneficiary of, or subject to, any of the following (those agreements, arrangements, contracts or commitments to which the Business is subject, but to which the Company, WW or the Subsidiaries is not, as between the Stockholder or its subsidiaries (other than the Company, WW and the Subsidiaries) and the Company, WW and the Subsidiaries, are clearly marked as such on Schedule 2.12(a)): (i) any collective bargaining agreements, (ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, (iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, (iv) any employment or consulting agreement, contract or commitment with any officer or director or higher level an employee or member of Company's Board of Directors, other than those that are terminable by Company individual consultant or salesperson or any of its subsidiaries on no more than thirty (30) days' notice without liability consulting or financial obligation to Company, (ii) any such sales agreement, contract or commitment with under which any employee, consultant, shareholder firm or other person that will result in any obligation of Company organization provides services to the Company, WW 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;Subsidiary, (bv) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation right rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;, (cvi) any agreement or plan to issue, grant, deliver or sell or authorize, or that proposes the issuance, grant, delivery or sale of, or to purchase or that proposes the purchase of, any shares, or any rights attached to any shares, in the Company, WW or any Subsidiary or any securities convertible into or exchangeable for shares in the Company, WW or any Subsidiary, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any shares in the Company, WW or any Subsidiary or other convertible securities, (vii) any fidelity or surety bond or completion bond, (viii) any lease of personal property requiring payments over the term of such lease or series of related leases individually in excess of $200,000 or any lease of real property, (ix) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company;guaranty, (dx) any agreement, contract or commitment containing any covenant limiting in any respect the right freedom of Company the Company, WW or any of its subsidiaries Subsidiary to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's distribution rights;person, (exi) any agreement, contract or commitment currently in force relating to the disposition capital expenditures or acquisition by Company involving future payments or any a series of its subsidiaries after the date related payments in excess of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiaries;$100,000, (fxii) any agreement, contract or commitment containing exclusivity provisions pursuant relating to which Company has agreed not to purchase the goods (other than local grocery products) disposition or services ofacquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's or WW's business, or enter into a commercial relationship with, another person;as applicable, (gxiii) 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 (ix) hereof, (xiv) any purchase order or contract for the purchase of raw materials involving $50,000 or more, (xv) any construction contracts involving future payments or a series of related payments in excess of $50,000, (xvi) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use of distribution of the Company's or WW's products, technologies or services; (hxvii) any settlement distribution, joint marketing or development agreement relating to that includes any claim provision granting any person a right of first refusal, right of first negotiation or suit;exclusive, "most favored nation" or preferential placement or other preferential rights, (ixviii) any real property lease covering more than 20,000 square feet;agreement pursuant to which the Company, WW or any Subsidiary has developed for and/or delivered to or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property, (jxix) any agreement, contract or commitment obligating Company to make for the purchase of advertising, (xx) any payments based on other agreement, contract or commitment that involves $100,000 or more or is not cancelable without penalty within thirty (i30) days (b) Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the number lapse of users accessing time, giving of notice, or both, as are all noted in Schedule 2.12(b) of the Stockholder Disclosure Letter, neither the Company, WW nor any website operated by Company or Subsidiary nor the Stockholder nor any of its subsidiaries has materially breached, violated or defaulted under, or received written notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on Schedule 2.12(a) of the Stockholder Disclosure Letter or Schedule 2.11(g) of the Stockholder Disclosure Letter (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; agreement, contract or commitment, a "Contract"). Each Contract is in full force and effect (assuming the Contracts have been duly authorized, executed and delivered by the respective other parties thereto) and is not subject to any default thereunder of which the Stockholder has Knowledge by any party obligated to the Company, WW or any Subsidiary pursuant thereto.

Agreements, Contracts and Commitments. As of the date hereofThe following agreements, neither Company nor any contracts or commitments with respect to which EpiCept or one of its subsidiaries is a party to or is bound byare referred to herein as the “EpiCept Contracts”: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's EpiCept’s Board of Directors, other than those that are terminable by Company EpiCept or any of its subsidiaries on no more than thirty (30) days' ’ notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination payEpiCept; (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 or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Companyguaranty; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company EpiCept or any of its subsidiaries to engage in any line of business in any geographic area or to compete with any person or granting to any person any interest in Company's exclusive distribution or marketing rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company EpiCept or any of its subsidiaries after the date of this Agreement of a material amount assets in excess of assets $150,000 not in the ordinary course of business or pursuant to which Company EpiCept has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's EpiCept’s subsidiaries; (f) any dealer, distributor, joint marketing, alliance, development or other agreement currently in force under which EpiCept or any of its subsidiaries have continuing material obligations to jointly market any product, technology, compound or service, or any material agreement pursuant to which EpiCept 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 EpiCept or any of its subsidiaries; (g) any material agreement, contract or commitment containing exclusivity provisions pursuant currently in force to which Company has agreed not license any third party to purchase manufacture or reproduce any EpiCept product, technology, compound or service or any material agreement, contract or commitment currently in force to sell or distribute any EpiCept product, compound or service except agreements with distributors or sales representatives in the goods normal course of business cancelable without penalty upon notice of ninety (other than local grocery products90) days or services of, or enter into a commercial relationship with, another personless and substantially in the form previously provided to Maxim; (gh) 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 (h) any settlement agreement relating other than trade payables arising, and advances to any claim or suitemployees made, in the ordinary course of business consistent with past practice); (i) any real property lease covering more than 20,000 square feet;settlement agreement entered into within five (5) years prior to the date of this Agreement; or (j) any other agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company in connection with or any of pursuant to which EpiCept and its subsidiaries will spend or receive (whether measured by registrationsor are expected to spend or receive), click-throughs in the aggregate, more than $150,000 during the current fiscal year or purchases by such users) during the next fiscal year, or (ii) revenues generated by purchases on any such website; or that is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC rules).

Agreements, Contracts and Commitments. As (a) Section 4.18(a) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date hereofof this Agreement, neither Company nor any of its subsidiaries is a party all of the following Contracts to or is bound by: (i) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Company's Board of Directors, other than those that are terminable by which the Company or any of its subsidiaries Subsidiaries is a party or to which any of their respective assets or properties is subject (collectively, the “Material Contracts”): (i) Any Contract required to be listed on no more than thirty (30Section 4.10(c), Section 4.17(c)(1) days' notice without liability or financial obligation to Company, Section 4.17(g)(i) of the Company Disclosure Letter; (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Any Contract under which the Company or any of its subsidiaries to make Subsidiaries has created, incurred, assumed, guaranteed or secured any payments as a result of the transactions contemplated hereby, Indebtedness; (iii) any agreement with any employee, consultant or shareholder Any Contract for the disposition of Company pursuant to which Company has loaned or is obligated to loan any money thereto or more than twenty-five percent (iv25%) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, assets or the vesting of benefits of which will be accelerated, by the occurrence of any business of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or of obligations of officers, directors, employees or agents of Company; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company or any of its subsidiaries Subsidiaries or relating to engage the acquisition or disposition of any material business, operations, division or assets of another Person (other than sales of products or purchases of supplies in the Ordinary Course of Business), whether by merger, sale of stock, sale of assets or otherwise, to the extent any unresolved claims or actual or contingent obligations of any party thereunder remain; (iv) Any Contract containing covenants that restrict the ability of the Company or any of its Subsidiaries to compete with any Person in any product line or line of business or in any geographic area or to compete with otherwise contains any person or granting to any person any interest in Company's distribution rights; (e) any agreement, contract or commitment currently in force relating to other restriction that impairs the disposition or acquisition by ability of the Company or any of its subsidiaries after Subsidiaries to freely conduct its business; (v) Any Contract (A) that contains covenants not to solicit merchants, customers or employees by the Company or any of its Subsidiaries or (B) which contains any minimum sales or volume, take-or-pay or any similar commitment of the Company or any of its Subsidiaries, and in the case of both clause (A) and (B) involves more than $162,500; (vi) Any Contract (x) containing most favored nation pricing provisions, (y) granting exclusivity rights to any vendor, supplier, customer, distributor, marketer or other business partner with respect to products or services purchased or sold by the Company or any of its Subsidiaries, and (z) containing any right of first refusal, first negotiation or similar right; (vii) Any Contract creating any Encumbrance (other than a Permitted Encumbrance) on any asset of the Company or any of its Subsidiaries; (viii) Any employment, independent contractor, or consulting agreement that provides, in the case of employees, for base salary in excess of $87,500 and for others, annualized compensation in excess of $150,000; (ix) Any collective bargaining Contract with a labor or trade union and any other Contract with any works council, association or other collective representative of any Employees of the Company or any of its Subsidiaries; (x) Any Contract, plan, or program providing for severance, termination, retention, change in control payments, or transaction-based bonuses; (xi) Any Contract with any professional employer organization; (xii) Any Contract relating to any joint venture, joint development, partnership, profit sharing or similar agreement; (xiii) Any Contract with any Governmental Authority (a “Government Contract”); (xiv) Any Contract with any Seller, any current or former officer, director or Employee of the Company or any of its Subsidiaries, any immediate family member of any current or former officer, director or Employee of the Company or any of its Subsidiaries or any Person which is controlled by any such current or former officer, director or Employee of the Company or any such immediate family member (other than Contracts disclosed under clause (viii) above and those not required to be disclosed because of the dollar limits therein); (xv) Any Contract with a Material Customer, Material Distributor or Material Supplier; (xvi) Any Contract providing for royalty, milestone or similar payments based on the revenues, profits or other financial performance metrics or development or sales milestones of the Company or any of its Subsidiaries, businesses, products or services, as applicable that involves more than $150,000; (xvii) Any Contract entered into since the Lookback Date or otherwise containing obligations that remain in effect providing for, or related to, the settlement or compromise of any litigation, claim, suit, dispute, disagreement or controversy (including any Contract in connection with which any employment-related claim has been settled); (xviii) Any Contract that provides for payment or receipt by the Company or any of its Subsidiaries of more than $200,000 within the twelve (12) month period (i) immediately preceding the date of this Agreement or (ii) following the date of a material amount of assets not this Agreement, in the ordinary course of business each case including any such Contract with customers, clients or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company's subsidiariesvendors; (fxix) any agreementAny agency, contract dealer, distributor, OEM (original equipment manufacturer), VAR (value added reseller), sales representative, franchise or commitment containing exclusivity provisions pursuant similar Contracts to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) 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; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound, pursuant to which any third party is authorized to sell, license, sublicense, lease, distribute, market or take orders for any Customer Offering or Company Intellectual Property and which involves payment to or receipt by the Company or any of its Subsidiaries of more than $250,000 within any twelve (whether measured 12) month period; (xx) Any Contract which contains any provisions requiring the Company or any of its Subsidiaries to indemnify any other party (excluding indemnities contained in Contracts for the purchase, sale or license of products or services entered into in the Ordinary Course of Business); (xxi) Any Contract that: (i) provides for the authorship, invention, creation, conception or other development of any Intellectual Property (A) by registrationsthe Company or any Subsidiary for any other Person or (B) for the Company or any Subsidiary by any other Person, click-throughs or purchases by such usersincluding, in each of cases (A) and (B), any joint development; or (ii) revenues generated by purchases on provides for the assignment or other transfer of any such website; ownership interest in Intellectual Property (A) to the Company or any Subsidiary from any other Person, or (B) by the Company or any Subsidiary to any other Person, in each case other than invention assignment agreements entered into with Employees in the Ordinary Course of Business; and (xxii) Any other Contract (or group of related Contracts) not enumerated in any other clause of this Section 4.18(a) that either involves more than $250,000 or was not entered into in the Ordinary Course of Business. (b) Each Material Contract is in full force and effect in all material respects and is valid and binding upon and enforceable against the Company or its Subsidiary party thereto and, to the Company’s Knowledge, each other party thereto in accordance with its respective terms (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies). Correct and complete copies of all Material Contracts have been made available to Purchaser. (c) Except as set forth in Section 4.18(c) of the Company Disclosure Letter, (i) each of the Company and its Subsidiaries, as applicable, has performed all material obligations required to be performed by it under each Material Contract to which it is a party, (ii) none of the Company, its Subsidiaries or, to the Company’s Knowledge, any other party thereto is in material breach of or in material default under, and no event has occurred which with notice or lapse of time or both would become a material breach of or default in any material respect under, any Material Contract, and (iii) since the Lookback Date, none of the Company or its Subsidiaries has received written notice (or, to the Company’s Knowledge, otherwise) of any breach of default or event described in clause (ii).

Agreements, Contracts and Commitments. As of Except as set forth on Section 3.16 to the date hereofDisclosure Schedules, neither Company Target nor any of its subsidiaries is a party to or is bound by: (ia) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of CompanyTarget's Board of Directors, other than those that are terminable by Company Target or any of its subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Company, (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination payTarget; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification of officers, directors or employees of Company or any guaranty other than any agreement of third party indebtedness indemnification entered into in connection with the sale or license of obligations computer or communications hardware products in the ordinary course of officers, directors, employees or agents of Companybusiness; (d) any agreement, contract or commitment containing any covenant limiting in any respect the right of Company Target or any of its subsidiaries to engage in any line of business, conduct business in any geographic geographical area or to compete with any person or granting to any person any interest in Company's exclusive distribution rights; (e) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company Target 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 Company Target has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than CompanyTarget's subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Target 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 Target 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 Target 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 containing exclusivity provisions pursuant currently in force to which Company has agreed not provide source code to purchase the goods (other than local grocery products) any third party for any product or services of, or enter into technology that is material to Target and its subsidiaries taken as a commercial relationship with, another personwhole; (gh) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Target product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Target 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 Parent; (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; (hj) any settlement agreement relating entered into within five (5) years prior to any claim or suit;the date of this Agreement; or (ik) any real property lease covering more than 20,000 square feet; (j) any other agreement, contract or commitment obligating Company that has a value of $1,000,000 or more individually. Neither Target nor any of its subsidiaries, nor to make Target's knowledge any payments based on other party to a Target Contract (ias 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 Target nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the number material terms or conditions of users accessing any website operated by Company of the agreements, contracts or commitments to which Target or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Disclosure Schedules (whether measured any such agreement, contract or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target 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 Target Contract is in full force and effect, and is a legal, valid and binding obligation of Target or a subsidiary of Target and, to the knowledge of Target, each of the other parties thereto, enforceable in accordance with its terms, except (a) that the enforcement thereof may be limited by registrations(i) bankruptcy, click-throughs insolvency, reorganization, moratorium or purchases by such users) other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) revenues generated by purchases 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 any such website; or (Target.