Common use of Agreements, Contracts and Commitments Clause in Contracts

Agreements, Contracts and Commitments. Section 3.01(bb) of the Company Disclosure Schedule lists all Contracts, commitments and understandings of any kind to which the Company or its Subsidiary is a party or by or to which the Company, its Subsidiary or any of their respective properties or assets is bound or subject, whether or not in writing, (i) which is material to the continued conduct of the business of the Company and its Subsidiary as currently conducted or as currently contemplated to be conducted; (ii) which is with respect to the Company's San Diego facility contract services business and under which the Company has any current or future obligation to provide any products or services; (iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party in excess of $125,000 annually or $250,000 in the aggregate; (iv) which includes any non-competition, non-solicitation, standstill or similar restrictions or undertakings on the Company or its Subsidiary; (v) pursuant to which the Company or its Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any other Person or pursuant to which any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or its Subsidiary; (vi) which provides for any mortgage, pledge, security agreement, deed of trust or other instrument or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights of the Company or its Subsidiary or any other material assets or group of assets of the Company or its Subsidiary; or (vii) which is not terminable by the Company or its Subsidiary by notice of not more than 30 days without the payment of any material penalty or premium. Each Contract, commitment or understanding required to be listed in Section 3.01(bb) of the Company Disclosure Schedule (collectively, the "Company Material Contracts") is in full force and effect and is enforceable against the Company or its Subsidiary (and, to the knowledge of the Company, against the other parties thereto) in accordance with its terms, except that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the Company nor its Subsidiary nor, to the Company's knowledge, any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, which in each case would reasonably be expected to materially impair the benefits expected to be derived therefrom.

Agreements, Contracts and Commitments. Except for Contracts filed as exhibits to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as disclosed in Section 3.01(bb4.12 of the Company’s Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract currently in effect and of the following nature (collectively, the “Company Material Contracts”): (a) Contracts (other than Benefit Plans, which are covered under Section 4.15) with any current or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be rendered; (b) Contracts that (x) involve the performance by the Company or any of its Subsidiaries of services of an amount or value in excess of $100,000 annually after June 30, 2005 or (y) involve payments by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable by the Company on not more than 30 days notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Schedule lists all Contracts, commitments and understandings of any kind to which the Company or its Subsidiary is a party or by or to which the Company, its Subsidiary or any of their respective properties or assets is bound or subject, whether or not in writing, Letter); (c) Contracts (i) which is material to for the continued conduct of the business of the Company and its Subsidiary as currently conducted or as currently contemplated to be conducted; (ii) which is with respect to the Company's San Diego facility contract services business and under which the Company has any current or future obligation to provide any products or services; (iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party in excess of $125,000 annually or $250,000 in the aggregate; (iv) which includes any non-competition, non-solicitation, standstill or similar restrictions or undertakings on the Company or its Subsidiary; (v) pursuant to which the Company or its Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any other Person or pursuant to which any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or its Subsidiary; (vi) which provides for any mortgage, pledge, security agreement, deed of trust or other instrument or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights of the Company or its Subsidiary or any other material assets or group sale of assets of the Company or any of its Subsidiary; Subsidiaries involving aggregate consideration of $50,000 or more (other than licenses of Products in the ordinary course of business), or (viiii) which is not terminable by for the grant to any Person of any preferential rights to purchase any material amount of assets or any material asset of the Company or any of its Subsidiary Subsidiaries; (d) Contracts for the acquisition, by notice merging or consolidating with, by purchasing an equity interest in or a portion of not more the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person (other than 30 days without the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice); (e) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material penalty to the Company or premium. Each Contract, commitment any of its Subsidiaries and which restrict the Company or understanding any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be listed in Section 3.01(bbdisclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Company Disclosure Schedule Securities Act; and (collectivelyo) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the "aggregate. Each Company Material Contracts") Contract and SEC Contract is in full force and effect effect, is a valid and is enforceable against binding obligation of the Company or the Subsidiary of the Company party thereto and, to the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiary (and, to the knowledge of the Company, against the other parties thereto) in accordance with its terms, except that such enforcement may be subject to Subsidiaries or (y) bankruptcy, insolvency, reorganization, moratorium interfere in a material manner with the business or other similar laws affecting or relating to enforcement operations of creditors' rights generally and (z) general equitable principles. Neither the Company nor and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary noror, to the Company's knowledge’s Knowledge, on the part of any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition whichthat, upon the passage of time or with the giving of notice or the lapse of time or both, would cause such become a violation default or event of or default under) under any Company Material Contract, which in each case would Contract or SEC Contract that could reasonably be expected to materially impair (x) result in a material loss or liability to the benefits expected to be derived therefromCompany or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets.

Agreements, Contracts and Commitments. Section 3.01(bb(a) of Neither the Company Disclosure Schedule lists all Contractsnor any of its Subsidiaries has any agreements, contracts or commitments and understandings of any kind (including but not limited to which end user license agreements) that (i) resulted in or will result in (A) payments by the Company or its Subsidiary is a party Subsidiaries during either fiscal year 2002 or by fiscal year 2003 (up to the date of this Agreement) or (B) payments to the Company or its Subsidiaries during the period beginning in fiscal year 2002 and ending as of the date of this Agreement, in either case in excess of $500,000; or (ii) which require the Company, its Subsidiary making of any charitable contribution in excess of $25,000; (b) No purchase contracts or commitments of the Company or any of their respective properties its Subsidiaries continue for a period of more than ninety (90) days or assets is bound or subjectare in excess of the normal, whether or not in writing, (i) which is material to the continued conduct ordinary and usual requirements of the business of the Company; (c) Except for agreements: (i) for the purchase, sale, license, distribution, maintenance or support of Company and its Subsidiary as currently conducted or as currently contemplated to be conductedproducts entered into in the ordinary course; (ii) under which is the Company made or received payments of less than $500,000 during calendar year 2002; or (iii) which do not provide for any term extension or expansion of the rights granted with respect to the Company's San Diego facility Company Intellectual Property as a result of the Merger, there are no contracts or agreements to which the Company is a party that (a) do not expire or that the Company may not terminate within one year after the date of this Agreement or (b) may be renewed at the option of any person other than the Company so as to expire more than one year after the date of this Agreement. (d) Neither the Company nor any of its Subsidiaries has any outstanding contract (i) with any officer, employee, agent, consultant, advisor, salesman or sales representative, or (ii) other than with respect to any reseller, distribution, OEM or end user license agreement for Company products entered into in the ordinary course of business, with any distributor or dealer that is not cancelable by it on notice of 30 days or less and without material liability, penalty or premium; (e) Neither the Company nor any of its Subsidiaries is in default, nor is there any known basis for any valid claim of default, under any contract made or obligation owed by it except for such defaults that would not reasonably be likely to have a Company Material Adverse Effect; (f) Neither the Company nor any of its Subsidiaries has any employee to whom it is paying compensation at an annual rate of more than $200,000.00 for services rendered; (g) Neither the Company nor any of its Subsidiaries is restricted from carrying on its business and in any material respect anywhere in the world by any material agreement under which the Company has (i) is restricted from selling, licensing or otherwise distributing any current of its technology or future obligation products or providing services to customers or potential customers or any class of customers, including without limitation resellers or other distributors, in any geographic area, during any period of time, or in segment of any market or line of business, (ii) is required to give favored pricing to any customers or potential customers or any class of customers or to provide exclusive or favored access to any products product features to any customers or services; potential customers or any class of customers, or (iii) which is has agreed to purchase a minimum amount of goods or services or has agreed to purchase goods or services exclusively from a certain party; (h) Neither the Company nor any of its Subsidiaries has any liability or obligation with respect to the return of inventory or merchandise in the possession of wholesalers, distributors, resellers, retailers or other customers, except for such obligations or liabilities that would not covered by clause reasonably be likely to have a Company Material Adverse Effect; (iii) and which pursuant Neither the Company nor any of its Subsidiaries has any debt obligation for borrowed money, including guarantees of or agreements to acquire any such debt obligation of others; (j) Neither the Company nor any of its terms imposes current or future payment obligations on either party Subsidiaries has any contract for capital expenditures in excess of $125,000 annually 250,000.00, individually, or such contracts representing in excess of $250,000 1,000,000.00 in the aggregate; ; (ivk) which includes Neither the Company nor any non-competitionof its Subsidiaries has any contract, non-solicitationagreement or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business; (l) Neither the Company nor any of its Subsidiaries has any contract, standstill agreement or similar restrictions commitment for the purchase of any ownership interest in any corporation, partnership, joint venture or undertakings on other business enterprise; (m) Neither the Company nor any of its Subsidiaries has any outstanding loan to any person other than to the Company or its Subsidiary; a wholly owned Subsidiary of the Company; (vn) pursuant to which Neither the Company nor any of its Subsidiaries has any power of attorney outstanding or its Subsidiary has directly any obligations or indirectly guaranteed indebtednessliabilities (whether absolute, liabilities accrued, contingent or obligations otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor (other than indemnities contained in agreements for the purchase, sale, license, distribution, maintenance or support of products entered into in the ordinary course of business) or otherwise in respect of any obligation of any person, corporation, partnership, joint venture, association, organization or other Person entity, or pursuant to which any other Person has directly capital maintenance, keep-well or indirectly guaranteed indebtedness, liabilities similar agreements or obligations of arrangements; (o) Neither the Company nor any of its Subsidiaries has any agreements, contracts or its Subsidiary; (vi) which provides for arrangements containing any mortgage, pledge, security agreement, deed of trust or other instrument or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights of provision requiring the Company to indemnify another party (other than indemnities contained in agreements for the purchase, sale, license, distribution, maintenance or its Subsidiary support of products entered into in the ordinary course of business) or containing any other material assets or group covenant not to bring legal action against any third party; (p) The Company has made available to Parent true, complete and correct copies of assets of the Company or its Subsidiary; or (vii) which is not terminable by the Company or its Subsidiary by notice of not more than 30 days without the payment of any material penalty or premium. Each Contract, commitment or understanding required to be each contract listed in Section 3.01(bb) 3.6 of the Company Disclosure Schedule (collectively, the "Company “Material Contracts"”); and (i) Neither the Company nor any of its Subsidiaries has materially breached, is in material default under, or has received written notice of any material breach of or material default under, any Material Contract and such breach or default remains uncured, (ii) to the Company’s knowledge, no other party to any Material Contract has materially breached or is in material default of any of its obligations thereunder which breach or default remains uncured, (iii) each Material Contract is in full force and effect and (iv) each Material Contract is enforceable against a legal, valid and binding obligation of the Company or its Subsidiary (and, to the knowledge Company’s knowledge, each of the Company, against the other parties thereto) , enforceable in accordance with its terms, except that such the enforcement thereof may be subject to limited by (yA) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to enforcement of creditors' ’ rights generally and (zB) general equitable principles. Neither the Company nor its Subsidiary nor, to the Company's knowledge, any other party to any Company Material Contract principles (regardless of whether enforceability is considered in violation of a proceeding in equity or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, which in each case would reasonably be expected to materially impair the benefits expected to be derived therefromat law).

Agreements, Contracts and Commitments. (a) Section 3.01(bb) 4.12 of the Company Disclosure Schedule Letter lists all the following Contracts in effect as of the date of this Agreement other than any Company Employee Plans (each, a “Company Material Contract” and collectively, the “Company Material Contracts”): (i) each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (ii) each Contract that is a collective bargaining agreement or other agreement or arrangement with any labor union, commitments and understandings works council or labor organization; (iii) each Contract for the employment or engagement of any kind individual on an employee, consulting or other basis that provides for annual base compensation in excess of $100,000; (iv) each Contract with any Company Associate that provides for retention, change in control, transaction or other similar payments or benefits, whether or not payable as a result of the Transactions; (v) each Contract relating to any agreement of indemnification or guaranty not entered into in the ordinary course of business; (vi) each Contract containing (A) any covenant limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or compete with any Person, or limiting the development, manufacture, or distribution of the Company’s products or services, (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision; (vii) other than any Contract that can be terminated for convenience on notice by the Company, each Contract to which the Company or its Subsidiary is Subsidiaries are a party that provides for recurring annual minimum payments or by receipts (other than milestone, royalty or to which the Company, its Subsidiary similar payments or any of their respective properties or assets is bound or subject, whether or not in writing, (iother contingent payments) which is material to the continued conduct of the business of the Company and its Subsidiary as currently conducted or as currently contemplated to be conducted; (ii) which is with respect to the Company's San Diego facility contract services business and under which the Company has any current or future obligation to provide any products or services; (iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party in excess of $125,000 annually 100,000 pursuant to its express terms; (viii) each Contract relating to the disposition or acquisition of material assets or any ownership interest in any Entity, in each case, involving payments in excess of $250,000 in 100,000 after the aggregate; (iv) which includes date of this Agreement or has outstanding any nonpurchase price adjustment, “earn-competition, non-solicitation, standstill out,” material payment or similar restrictions or undertakings obligations on the part of the Company or its Subsidiary; Subsidiaries; (vix) pursuant each Contract to which the Company or its Subsidiary has directly Subsidiaries are a party relating to any indebtedness for borrowed money, financial guaranty, mortgages, indentures, loans, notes or indirectly guaranteed indebtednesscredit agreements, liabilities security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000 or creating any material Liens with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company; (x) each Contract to which the Company or any other Person or of its Subsidiaries are a party pursuant to which (A) the Company or its Subsidiaries have continuing milestone or similar contingent payments obligations, including upon the achievement of regulatory or commercial milestones or payment of royalties or other amounts calculated based upon any other Person has directly revenues or indirectly guaranteed indebtedness, liabilities or obligations income of the Company or its SubsidiarySubsidiaries, in each case, that could result in payments in excess of $100,000, and in each case, excluding indemnification and performance guarantee obligations provided for in the ordinary course of business; (viB) which provides for the Company or any mortgageof its Subsidiaries grant to or receive from any third party any license to, pledge, security agreement, deed of trust or covenant not to sue or other instrument right with respect to, any material Intellectual Property Rights; or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights of (C) the Company or its Subsidiary Subsidiaries have ongoing performance obligations relating to any material research, development and/or collaboration programs or pre-clinical and/or clinical trials and studies with respect to the Company Product Candidates; in each case ((A)-(C)), other than Incidental Contracts; (xi) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Transactions; (xii) each Contract to which the Company or any of its Subsidiaries is a party or by which any of their assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company or such Subsidiary in excess of $100,000; (xiii) a Company Real Estate Lease; (xiv) any other Contract that is not terminable at will (with no penalty or payment) by the Company or any of its Subsidiaries, and (A) which involves payment or receipt by the Company or such Subsidiary after the date of this Agreement under any such agreement, contract or commitment of more than $100,000 in the aggregate, or obligations after the date of this Agreement in excess of $25,000 in the aggregate or (B) that is material assets to the business or group operations of assets of the Company and its Subsidiaries taken as a whole; (xv) each stockholders’, investors rights’, registration rights or similar Contract to which the Company is a party (excluding Contracts governing Company Options and Company Restricted Stock Unit Awards); and (xvi) each Contract with or binding upon the Company or its Subsidiary; or (vii) which is not terminable by the Company Subsidiaries, or its Subsidiary by notice and their properties or assets that is of not more than 30 days without the payment of any material penalty or premium. Each Contract, commitment or understanding type that would be required to be listed in Section 3.01(bbdisclosed under Item 404 of Regulation S-K under the Securities Act. (b) The Company has delivered or made available to Parent accurate and complete copies of the Company Disclosure Schedule (collectively, the "all Company Material Contracts") is , including all amendments thereto. There are no Company Material Contracts that are not in full force and effect and is enforceable against the written form. The Company or its Subsidiary (andhas not, to the knowledge of the Company, against the other parties thereto) in accordance with its terms, except that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the Company nor its Subsidiary nor, to the Company's knowledge’s knowledge as of the date of this Agreement, has any 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 terms or conditions of any Company Material Contract is in violation of such manner as would permit any other party to cancel or in default under (nor does there exist terminate any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, or would permit any other party to seek damages which in each case would reasonably be expected to materially impair have a Company Material Adverse Effect. As to the benefits expected Company and its Subsidiaries, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to be derived therefromthe Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company under any Company Material Contract or any other material term or provision of any Company Material Contract.

Agreements, Contracts and Commitments. Section 3.01(bb(a) Schedule 5.14(a) contains a true and complete list as of the Execution Date, and the Company Disclosure Schedule lists all Contractshas delivered to Purchaser complete and correct copies, commitments and understandings of any kind the Contracts described below to which the Company or its any Subsidiary is a party or by or to which (collectively, the Company, its Subsidiary or any of their respective properties or assets is bound or subject, whether or not in writing, "SCHEDULED CONTRACTS"): (i) which is material to the continued conduct of the business of the Company and its Subsidiary as currently conducted or as currently contemplated to be conducted; (ii) which is with respect to the Company's San Diego facility contract services business and under which the Company has any current or future obligation to provide any products or services; (iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party in excess of $125,000 annually or $250,000 in the aggregate; (iv) which includes any non-competition, non-solicitation, standstill or similar restrictions or undertakings on the Company or its Subsidiary; (v) each Contract pursuant to which the Company or its any Subsidiary currently leases real property used in the operation of the Business, including the FBO Leases; (ii) each Contract for the purchase of fuel after the date hereof by the Company or any Subsidiary; (iii) each Contract reasonably expected to involve the future delivery by the Company or any Subsidiary of 500,000 or more gallons of fuel per year to any single customer and any requirements Contracts for fuel; (iv) each Contract that has directly a remaining term in excess of one year, cannot be terminated on less than 90 days' notice (without a monetary penalty) and involves future payments, performance or indirectly guaranteed indebtedness, liabilities services or obligations delivery of goods or materials to or by the Company or any Subsidiary of any other Person amount or pursuant value reasonably expected to which exceed $50,000 in any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations future 12-month period; (v) each license agreement of the Company or its Subsidiary; any Subsidiary with respect to patents, trademarks, copyrights or other intellectual property rights currently used or to be used by the Company or any Subsidiary (other than those relating to commercial-off-the-shelf software entered into in the ordinary course of business, the annual fees for which do not exceed $5,000 individually, or $50,000 in the aggregate); (vi) which provides for any mortgageeach joint venture, pledge, security agreement, deed partnership and other similar Contract involving the sharing of trust or other instrument or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights profits of the Company or its any Subsidiary or with any other material assets or group of assets third-party; (vii) each Contract that limits the freedom of the Company or its any Subsidiary to compete in any line of business, to compete within any geographic area or with any Person or otherwise materially restricts the Company's or any Subsidiary; 's ability to solicit or hire any Person or solicit business from any Person; (viiviii) which is not terminable each Contract with current or former stockholders, officers, directors or employees of the Company or any Subsidiary, in each case, that provides for any unsatisfied severance obligation; (ix) each collective bargaining agreement or other Contract to or with any labor unions involving the Company's or any Subsidiary's employees; (x) any and all broker, distributor or dealer agreements that involve future payments of amounts reasonably expected to exceed $50,000 in any future 12-month period; (xi) any and all agreements requiring the incurrence of debt for borrowed money by the Company or its Subsidiary by notice of not more than 30 days without any Subsidiary; (xii) each Contract relating to the payment disposition or acquisition of any material penalty FBO facility or premium. Each Contractrelated business, commitment or understanding required to be listed in Section 3.01(bbeach case, since March 1, 2003, including the Initial Acquisition Purchase Agreements, the Project C Acquisition Agreement, the Additional Acquisition Purchase Agreements, if any, and the Additional Acquisition Letters, if any; and (xiii) each amendment in respect of any of the Company Disclosure Schedule foregoing. (collectively, the "Company Material Contracts"b) is The Scheduled Contracts are in full force and effect and is enforceable against effect. To the Company or its Subsidiary (and, to the knowledge Knowledge of the Company, against except for the consent requirements listed on Schedule 5.5, no event has occurred that, with notice, the passage of time or both, would constitute a default by the Company or any other party under, or failure of the Company or any other party to comply with a material provision of, any of the Scheduled Contracts, or otherwise give any party a right of termination or material modification thereof. None of the Company, the Subsidiaries or, to the Knowledge of the Company, the other party or parties to such Scheduled Contracts (i) is in default under the terms of any such Scheduled Contract, (ii) has received a notice that it is in default under, or not in material compliance with, any provision of any Scheduled Contracts or (iii) has delivered any notice to another party alleging any default under, or failure to comply with any material provision of any Scheduled Contract. Each such Scheduled Contract is the valid and binding obligation of the Company or the Subsidiaries, as applicable, and to the Knowledge of the Company, the other party or parties thereto) , enforceable by the Company or the Subsidiaries in accordance with its terms, the terms of such Scheduled Contracts except that such enforcement as the enforceability thereof may be subject to (y) limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or Legal Requirements relating to enforcement of or affecting creditors' rights generally and (z) general or by equitable principles. Neither . (c) Except as disclosed on Schedule 5.14(c), as of the Execution Date, to the Knowledge of the Company, no material supplier to or landlord of the Company or any Subsidiary, or any Governmental Entity, has taken, and neither the Company nor its any Subsidiary norhas received any notice that, any material supplier to or landlord of the Company or any Subsidiary, or any Governmental Entity, contemplates taking, any steps to terminate or materially and adversely alter the business relationship of Company with such supplier, landlord or Governmental Entity. (d) All of the Company's knowledge, obligations and the Subsidiaries' obligations to indemnify (including any other party obligations to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default underadvance funds for expenses) any Person for acts or omissions by such Person occurring prior to the Closing Date, whether pursuant to Charter Documents of the Company Material Contractor any Subsidiary, which in each case would reasonably be expected to materially impair the benefits expected to be derived therefromindividual indemnity agreements, board resolutions or otherwise, are listed and described on Schedule 5.14(d).

Agreements, Contracts and Commitments. Except as set forth in Section 3.01(bb) 3.11 of the Company Disclosure Schedule lists all Contracts, commitments and understandings of any kind Letter or filed or incorporated by reference as exhibits to which the Company or its Subsidiary SEC Documents on the date of this Agreement, neither the Company nor any of the Subsidiaries is currently a party to or bound by any contracts, agreements, instruments, arrangements, guarantees, licenses, executory commitments or to which the Company, its Subsidiary or any of their respective properties or assets is bound or subject, whether or not in writing, (i) which is material to the continued conduct of the business of the Company and its Subsidiary as currently conducted or as currently contemplated understandings that continue to be conducted; (ii) which is with respect to the Company's San Diego facility contract services business and under which the Company has any current or future obligation to provide any products or services; (iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party in excess of $125,000 annually or $250,000 in the aggregate; (iv) which includes any non-competition, non-solicitation, standstill or similar restrictions or undertakings binding on the Company or its Subsidiary; Subsidiaries (veach, a "CONTRACT") pursuant to which of the Company following nature (collectively, the "COMPANY MATERIAL CONTRACTS"): (i) Contracts with any current or its Subsidiary has directly former employee, director or indirectly guaranteed indebtedness, liabilities or obligations of any other Person or pursuant to which any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations officer of the Company or its Subsidiary; (vi) which provides for any mortgage, pledge, security agreement, deed of trust or other instrument or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights of the Subsidiaries; (ii) Contracts that involve the performance of services of an amount, payments or value (as measured by the revenue derived therefrom during the fiscal year ended December 30, 2001) in excess of $250,000 annually, unless terminable by the Company or its Subsidiary or any other on not more than ninety (90) days notice without material assets or group penalty; (iii) Contracts (x) for the sale of assets of the Company or its any of the Subsidiaries involving aggregate consideration of $150,000 or more, or (y) for the grant to any -21- Person of any preferential rights to purchase any material amount of assets of the Company or any of the Subsidiaries; (iv) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice); (v) Contracts (including, without limitation, loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (vi) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $12,500 or less to any individual on any date of determination, and $150,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary; , or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (vii) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including, without limitation, any franchising agreement); (viii) Contracts to be performed relating to capital expenditures with a value in excess of $250,000 in any calendar year, or in the aggregate capital expenditures with a value in excess of $1,000,000; (ix) Contracts relating to any Liquor License of any Company Restaurant (as defined in Section 3.16(b)); (x) Contracts which is not terminable by contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock (other than the Company Senior Credit Agreement); (xi) Contracts containing covenants purporting to restrict the Company or any of its Subsidiary by notice affiliates from competing with any Person or which restrict any other Person from competing with the Company or any of not more its affiliates; (xii) Contracts which are material to the Company or any of the Subsidiaries and which restrict the Company or any of the Subsidiaries from disclosing any information concerning or obtained from any other Person (other than 30 days without Contracts entered into in the payment ordinary course of any material penalty or premium. Each Contract, commitment or understanding business); (xiii) Contracts that would be required to be listed in Section 3.01(bbdisclosed under Item 404 of Regulation S-K under the Securities Act; or (xiv) Contracts of the type described under Item 601(b)(10) of Regulation S-K under the Company Disclosure Schedule (collectively, the "Securities Act. Each Company Material Contracts") Contract is in full force and effect effect, is a valid and is enforceable against binding obligation of the Company or its the Subsidiary (party thereto and, to the knowledge of the Company, against the other parties thereto) in accordance with its terms, except that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the Company nor its Subsidiary nor, to the Company's knowledgeKnowledge, each other party thereto. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company's Knowledge, on the part of any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition whichthat, upon the passage of time or with the giving of notice or the lapse of time or both, would cause such become a violation default or event of or default under) under any Company Material Contract, except for such defaults or events of default which have not resulted in each case and would not reasonably be expected likely to materially impair result in, individually or in the benefits expected to be derived therefromaggregate, a Company Material Adverse Effect.

Agreements, Contracts and Commitments. Section 3.01(bb(a) The Company Disclosure Letter lists each of the following contracts and agreements (including, without limitation, oral and informal arrangements) of the Company and its Subsidiaries (such contracts and agreements listed in the Company Disclosure Schedule lists Letter, together with all Contractscontracts, commitments agreements, leases and understandings subleases concerning the management or operation of any kind real property (including, without limitation, brokerage contracts) listed in the Company Disclosure Letter to which the Company or any of its Subsidiary Subsidiaries is a party and all agreements relating to Intellectual Property set forth in the Company Disclosure Letter, being “Company Material Contracts”): (i) each contract, agreement, invoice, purchase order and other arrangement, for the purchase of inventory, spare parts, other materials or by personal property with any supplier or for the furnishing of services to which the Company, its Subsidiary Company or any of their respective properties its Subsidiaries or assets is bound or subject, whether or not in writing, (i) which is material otherwise related to the continued conduct of the business of the Company and or any of its Subsidiary as currently conducted or as currently contemplated to be conducted; Subsidiaries under the terms of which: (iiA) which is with respect to the Company's San Diego facility contract services business and under which the Company has or any current of its Subsidiaries is likely to pay or future obligation otherwise give consideration of more than $25,000 in the aggregate during the calendar year ended December 31, 2006, (B) the Company or any of its Subsidiaries is likely to provide pay or otherwise give consideration of more than $50,000 in the aggregate over the remaining term of such contract, or (C) cannot be cancelled by the Company or any products of its Subsidiaries, as applicable, without penalty or services; (iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or future further payment obligations on either party in excess of $125,000 annually 5,000 and without more than thirty (30) days’ notice; (ii) each contract, agreement, invoice, sales order and other arrangement, for the sale of inventory or $250,000 in other personal property or for the aggregate; (iv) which includes any non-competition, non-solicitation, standstill or similar restrictions or undertakings on furnishing of services by the Company or any of its Subsidiary; Subsidiaries which: (vA) pursuant is likely to involve consideration of more than $25,000 in the aggregate during the calendar year ended December 31, 2006, (B) is likely to involve consideration of more than $50,000 in the aggregate over the remaining term of the contract, or (C) cannot be cancelled by the Company or any of its Subsidiaries, as applicable, without penalty or further payment in excess of $5,000 and without more than thirty (30) days’ notice; (iii) all broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing, consulting and advertising contracts and agreements to which the Company or any of its Subsidiary has directly Subsidiaries is a party; (iv) all management contracts and contracts with independent contractors or indirectly guaranteed indebtedness, liabilities consultants (or obligations of any other Person or pursuant similar arrangements) to which the Company or any other Person has directly of its Subsidiaries is a party and which are not cancelable without penalty or indirectly guaranteed indebtedness, liabilities or obligations further payment and without more than thirty (30) days’ notice; (v) all contracts and agreements relating to indebtedness of the Company or any of its Subsidiary; Subsidiaries; (vi) all contracts and agreements with any Governmental Authority to which provides for the Company or any mortgage, pledge, security agreement, deed of trust or other instrument or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights its Subsidiaries is a party; (vii) all contracts and agreements that limit the ability of the Company or any of its Subsidiary Subsidiaries to compete in any line of business or with any other material assets Person or group in any geographic area or during any period of assets of time; (viii) all contracts and agreements between or among the Company or its Subsidiaryany affiliate or Subsidiary of the Company; (ix) all contracts and agreements for providing benefits under any Benefit Plan (as hereinafter defined); and (x) all other contracts and agreements, whether or (vii) not made in the ordinary course of the business, which is not terminable by are material to the Company or any of its Subsidiary by notice Subsidiaries or the conduct of not more than 30 days without their respective businesses. For purposes of this Agreement, the payment of term “lease” shall include any material penalty and all leases, subleases, sale/leaseback agreements or premium. Each Contract, commitment or understanding required to be listed similar arrangements. (b) Except as disclosed in Section 3.01(bb) of the Company Disclosure Schedule (collectivelyLetter, the "each Company Material Contracts"Contract: (i) is valid and binding on the respective parties thereto and is in full force and effect and is enforceable against effect. Neither the Company nor any of its Subsidiaries is in breach of, or its Subsidiary default under, any Company Material Contract, as applicable. (andc) Except as disclosed in the Company Disclosure Letter, no other party to any Company Material Contract is, to the knowledge of the Company, against in material breach thereof or default thereunder. (d) Except as disclosed in the other parties thereto) in accordance with its termsCompany Disclosure Letter, except that such enforcement may be subject to (y) bankruptcythere is no contract, insolvency, reorganization, moratorium agreement or other similar laws affecting arrangement granting any Person any preferential right to purchase, other than in the ordinary course of the business consistent with past practice, any of the properties or relating to enforcement assets of creditors' rights generally and (z) general equitable principles. Neither the Company nor or any of its Subsidiary nor, to the Company's knowledge, any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, which in each case would reasonably be expected to materially impair the benefits expected to be derived therefromSubsidiaries.

Agreements, Contracts and Commitments. (a) Section 3.01(bb3.13(a) of the Company Disclosure Schedule lists all identifies each of the following types of Company Contracts that is in effect as of the date of this Agreement, other than Company Employee Plans and the definitive agreements in respect of the Contemplated Transactions (each, a “Company Material Contract” and collectively, the “Company Material Contracts”): (i) that constitute Company Convertible Notes; (ii) that relates to any material bonus, commitments and understandings of any kind deferred compensation, or severance plans or arrangements; (iii) requiring or otherwise involving payment by or to which the Company or any of its Subsidiary is Subsidiaries of more than an aggregate of $250,000 during the fiscal year ending December 31, 2023 (other than indemnification agreements or employment and separation agreements entered into in the ordinary course of business); (iv) evidencing a party or commitment by or to which the Company, its Subsidiary Company or any of their respective properties its Subsidiaries to make a future capital expenditure in excess of $250,000 that is not terminable by such Entity upon notice of sixty (60) days or assets is bound less without penalty or subjectliability; (v) that requires payments by the Company or any of its Subsidiaries after the date of this Agreement in excess of $250,000 pursuant to its express terms relating to the employment of, whether or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services, not in writingterminable by the Company or any of its Subsidiaries on thirty (30) calendar days’ or less notice without liability, except to the extent general principles of wrongful termination Law may limit the Company’s, or such successor’s ability to terminate employees at will; (vi) (A) that includes (1) any “most favored nations” terms or conditions, including with respect to pricing, (i2) containing exclusivity obligations or otherwise limiting the freedom or right of the Company or any of its Subsidiaries to sell, distribute or manufacture any products or services for another person, or (3) any rights of first refusal, rights of first negotiation or similar obligations or restrictions, including such rights which provide a right of first negotiation or refusal to purchase, lease, sublease, license, sublicense, use, possess or occupy any securities, assets (including Intellectual Property) or other interest of the Company or any of its Subsidiaries or (B) containing any provision or covenant that materially limits, or purports to materially limit, the ability of the Company or any of its Subsidiaries to engage in any line of business (whether generally or in any geographic area) or compete with any Person or in any line of business or geographic area; (vii) relating to or evidencing indebtedness for borrowed money or any guarantee of indebtedness for borrowed money by the Company or any of its Subsidiaries in excess of $250,000 (excluding loans by the Company to wholly-owned Subsidiaries in the Ordinary Course of Business); (viii) providing for or governing the formation of any joint venture, partnership, strategic alliance, research and development collaboration, or similar arrangement; (ix) that is a Contract governing, related to or pertaining to any Company Intellectual Property (other than any confidential information provided under confidentiality agreements) that is material to the continued conduct of the business of the Company and its Subsidiary Subsidiaries, taken as currently conducted or as currently contemplated a whole; (x) (A) pursuant to be conducted; (ii) which is with respect to the Company's San Diego facility contract services business and under which any Person granted the Company has an exclusive license under any current Intellectual Property, or future obligation to provide any products or services; (iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party in excess of $125,000 annually or $250,000 in the aggregate; (iv) which includes any non-competition, non-solicitation, standstill or similar restrictions or undertakings on the Company or its Subsidiary; (vB) pursuant to which the Company or any of its Subsidiary Subsidiaries granted any Person an exclusive license under any Company Intellectual Property; (xi) that has directly continuing obligations or indirectly guaranteed indebtednessinterests involving (A) “milestone” or other similar contingent payments, liabilities including upon the achievement of development, regulatory or obligations commercial milestones, or (B) payment of any royalties or other Person amounts calculated based upon sales, revenue, income or pursuant to which any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations similar measure of the Company or any of its Subsidiary; Subsidiaries; (vixii) that is a settlement, conciliation or similar Contract with or approved by any Governmental Authority (A) pursuant to which provides for the Company or any mortgage, pledge, security agreement, deed of trust its Subsidiaries will be required after the date of this Agreement to pay any monetary obligations or other instrument (B) that contains material obligations or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights limitations on the conduct of the Company or any of its Subsidiary Subsidiaries (other than customary confidentiality obligations); (xiii) with any Governmental Authority, except for materials transfer agreements, agreements with academic institutions and non-disclosure agreements entered into in the Ordinary Course of Business; (xiv) that is a clinical trial agreement, clinical study agreement or similar agreement; (xv) (A) that is a collective bargaining agreement or (B) with any other material assets labor organization; (xvi) that prohibits the payment of dividends or group distributions in respect of assets the capital stock of the Company or any of its Subsidiary; Subsidiaries, the pledging of the capital stock or (vii) which is not terminable other equity interests of the Company or any of its Subsidiaries or the issuance of any guaranty by the Company or any of its Subsidiary Subsidiaries; (xvii) relating to the disposition or acquisition of material assets or any ownership interest in any Entity; (xviii) requiring payment by notice or to the Company or any of its Subsidiaries after the date of this Agreement in excess of $500,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or 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 that will not more 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 of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Company Contracts entered into in the Ordinary Course of Business; (xix) with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company or any of its Subsidiaries in connection with the Contemplated Transactions; or (xx) that was entered into since January 1, 2021 and was entered into with any present or former officer, director or employee of the Company or any of its Subsidiaries (other than 30 days without indemnification agreements, or any Employee Plans entered into in the payment ordinary course of any material penalty business) or premium. Each Contract, commitment or understanding (B) is the type of Contract that would be required to be listed in Section 3.01(bb) disclosed under Item 404 of Regulation S-K of the Exchange Act. (b) The Company Disclosure Schedule (collectively, the "has delivered or made available to Aspen accurate and complete copies of all Company Material Contracts") is , including all amendments thereto. There are no Company Material Contracts that are not in full force and effect and is enforceable against the written form. The Company or its Subsidiary (andhas not, to the knowledge of the Company, against the other parties thereto) in accordance with its terms, except that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the Company nor its Subsidiary nor, to the Company's knowledge’s Knowledge, as of the date of this Agreement has any 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 terms or conditions of any Company Material Contract is in violation of such manner as would permit any other party to cancel or in default under (nor does there exist terminate any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, or would permit any other party to seek damages which in each case would reasonably be expected to materially impair have a Company Material Adverse Effect. As to the benefits expected Company, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to be derived therefromthe Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company under any Company Material Contract or any other material term or provision of any Company Material Contract.

Agreements, Contracts and Commitments. (a) The applicable subpart of Section 3.01(bb3.11(a) of the Company Disclosure Schedule lists sets forth all Contracts, commitments and understandings of any kind the following Contracts to which the Company or its Subsidiary is Subsidiaries are a party or by or to which the Company, its Subsidiary it or any of their respective properties or its assets is bound or subject(collectively, whether or not in writingwith the Real Property Leases, the “Company Material Contracts”): (i) which is material to Contracts entered into within the continued conduct of last three (3) years or otherwise having executory obligations on the business part of the Company or its Subsidiaries and its Subsidiary as currently conducted or as currently contemplated to be conducted; (ii) which is with respect relating to the Company's San Diego facility contract services business and under which acquisition or disposition by the Company has or its Subsidiaries of: (A) any current business, real property or future obligation to provide business segment (whether by merger, consolidation or other business combination, sale of assets or otherwise) or the capital stock of any products Person, (B) any of the assets of the Company or services; its Subsidiaries (iiiother than sales of inventory or the disposition of obsolete equipment, in each case in the ordinary course of business) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party for consideration in excess of $125,000 25,000; (ii) Contracts relating to the incurrence, assumption or guarantee of any debt; (iii) any other Contracts (or groups of related Contracts) that are not terminable by the Company or any other Subsidiary without penalty on notice of sixty (60) days or less, which (A) which involve the expenditure or receipt of more than $25,000 annually or more than $250,000 in 100,000 over the aggregate; remaining term, or (B) require performance by any Party more than one year from the Signing Date; (iv) which includes Contracts that contain a change of control or other similar provision; (v) Contracts restricting the ability of the Company or any non-competition, non-solicitation, standstill Subsidiary to operate or similar restrictions compete in any business or undertakings on with any Person or in any geographic area during any period of time; (vi) Contracts that require the Company or its Subsidiary; Subsidiaries to purchase minimum quantities (vor pay any amount for failure to purchase any specific quantities) pursuant of goods or services, comply with “take or pay” arrangements, deal with any Person on an exclusive basis, or provide “most favored nations” or similar pricing to which any Person; (vii) Contracts that require the Company or its any Subsidiary has directly to indemnify or indirectly guaranteed indebtedness, liabilities or obligations of hold harmless any other Person or pursuant to which any (other Person has directly or indirectly guaranteed indebtedness, liabilities or than obligations of the Company or its Subsidiary; Subsidiaries to indemnify its customers against third party intellectual property claims contained in the Company Form License Agreements); (viviii) which provides Contracts that provide for any mortgagepartnership, pledgejoint venture, security agreementstrategic alliance, deed teaming or similar arrangement; (ix) Contracts that provide for or relate to any employment or consulting relationship with any Person (other than at-will arrangements), including any stock option, stock purchase, stock appreciation, deferred compensation, severance of trust other similar equity or other instrument equity-like plan or arrangement involving current or former directors, managers, stockholders, officers, or employees; (x) Contracts under which the Company or any Subsidiary grants or is granted a license of any Intellectual Property (other than Company Form License Agreements and licenses to the Company or its Subsidiaries, as applicable, of commercially-available software for total consideration of less than $5,000); (xi) Contracts with any Governmental Authority, including any settlement, conciliation or similar agreements with any Governmental Authority; (xii) Contracts granting a power of attorney; (xiii) Contracts relating to the sales or purporting distributions of the Company’s or its Subsidiary’s products or services (excluding purchase and sales orders entered into in the ordinary course of business and Company Form License Agreements); and (xiv) Contracts that are otherwise material to ▇▇▇▇▇ ▇ ▇▇▇▇ the business, operations or security interest upon any intellectual property rights financial condition of the Company or its Subsidiary Subsidiaries and is outside the Company’s or its Subsidiary’s ordinary course of business; (xv) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other material assets or group of assets of the Person, providing advisory services to Company or its Subsidiary; Subsidiaries in connection with the Contemplated Transactions; (b) True, correct and complete copies of all Material Contracts as currently in effect have previously been delivered to VINE. The Company and its Subsidiaries are not in default under any Material Contract. To the Knowledge of the Company, no other party to a Material Contract has breached, violated or defaulted under any Material Contract and no circumstance exists that, with notice or lapse of time or both (vii) which is not terminable by including the Company or its Subsidiary Merger), would constitute a default by notice of not more than 30 days without the payment of any material penalty or premiumparty. Each Contract, commitment or understanding required to be listed in Section 3.01(bb3.11(b) of the Company Disclosure Schedule (collectively, sets forth summaries containing the "Company terms of all oral Material Contracts") is in full force and effect and is enforceable against the Company or its Subsidiary (and, to the knowledge of the Company, against the other parties thereto) in accordance with its terms, except that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the Company nor its Subsidiary nor, to the Company's knowledge, any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, which in each case would reasonably be expected to materially impair the benefits expected to be derived therefrom.

Agreements, Contracts and Commitments. Section 3.01(bb) Item 3.10 of the Company Aurora Disclosure Schedule lists all Contractssets forth a complete and correct list of each existing contract, commitments and understandings agreement or commitment of any kind to which the Company or its Subsidiary is a party or by or to which the CompanyAurora, its Subsidiary or any of their respective properties or assets is bound or subject, whether or not in writing, other than Material Leases: (i) upon which any substantial part of its business is material dependent or which, if breached, would be reasonably likely to the continued conduct of the business of the Company and its Subsidiary as currently conducted or as currently contemplated to be conducted; have a Material Adverse Effect on Aurora; (ii) which provides for aggregate future payments of more than $5,000, except for purchase orders or sale orders arising in the ordinary and usual course of business, in which case they are listed only if any party thereto is with respect obligated to the Company's San Diego facility contract services business and under which the Company has any current or future obligation to provide any products or services; make payments pursuant thereto aggregating more than $25,000; (iii) which extends for more than 180 days from the date hereof and is not covered cancellable by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party in excess of $125,000 annually on 30 days' notice or $250,000 in the aggregate; less; (iv) which includes provides for the sale, after the date hereof and other than in the ordinary course of business, of any nonof its assets; (v) which relates to the employment, compensation, retirement or termination of the services of any officer or employee or former officer or employee, including bonus, incentive, pension, profit-competitionsharing, non-solicitationhospitalization, standstill insurance, deferred compensation, retirement, stock option or stock purchase plans or similar restrictions plans providing employee benefits for or undertakings on with respect to any officer or employee; (vi) which contains covenants pursuant to which any person or entity has agreed not to compete with the Company business of any other person or its Subsidiary; entity or not to disclose to others information concerning such other person or entity; (vvii) which relates to the sale or other disposition of goods or services and which (A) involve terms or quantities exceeding normal commitments or in the ordinary course of business or (B) contain most favored pricing or other special pricing terms or other provisions which would prohibit or limit the ability of Buyer to effect price increases; (viii) pursuant to which the Company title to any assets of Aurora may be encumbered; or (ix) which relates to any partnership, joint venture or its Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations other arrangement involving a sharing of profits from any other Person or pursuant to which any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations enterprise. Each of the Company or its Subsidiary; (vi) which provides for any mortgage, pledge, security agreement, deed of trust or other instrument or arrangement granting or purporting foregoing is referred to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights in this Agreement as a "Material Contract." Except as set forth in Item 3.10 of the Company or its Subsidiary or any other material assets or group of assets of the Company or its Subsidiary; or (vii) which is not terminable by the Company or its Subsidiary by notice of not more than 30 days without the payment of any material penalty or premium. Each ContractAurora Disclosure Schedule, commitment or understanding required to be listed in Section 3.01(bb) of the Company Disclosure Schedule (collectively, the "Company each Material Contracts") Contract is in full force and effect and is enforceable against there has not occurred, with respect to any such Material Contract, any default or event of default, which, with or without due notice or with the Company lapse of time, or its Subsidiary (andboth, would constitute a default or event of default on the part of Aurora, or, to the knowledge best of the Company, against the other parties thereto) in accordance with its terms, except that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the Company nor its Subsidiary nor, to the CompanyAurora's knowledge, any other party to any Company thereto, except where such default or event of default would not have a Material Adverse Effect on Aurora. Complete copies of each Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, which in each case would reasonably be expected have been delivered to materially impair the benefits expected to be derived therefromBuyer.

Agreements, Contracts and Commitments. (a) The applicable subpart of Section 3.01(bb3.11(a) of the Company Disclosure Schedule lists sets forth all Contracts, commitments and understandings of any kind the following Contracts to which the Company or its Subsidiary is Subsidiaries are a party or by or to which the Company, its Subsidiary it or any of their respective properties or its assets is bound or subject(collectively, whether or not in writingwith the Real Property Leases, the “Company Material Contracts”): (i) which is material to Contracts entered into within the continued conduct of last three (3) years or otherwise having executory obligations on the business part of the Company or its Subsidiaries and its Subsidiary as currently conducted or as currently contemplated to be conducted; (ii) which is with respect relating to the Company's San Diego facility contract services business and under which acquisition or disposition by the Company has or its Subsidiaries of: (A) any current business, real property or future obligation to provide business segment (whether by merger, consolidation or other business combination, sale of assets or otherwise) or the capital stock of any products Person, (B) any of the assets of the Company or services; its Subsidiaries (iiiother than sales of inventory or the disposition of obsolete equipment, in each case in the ordinary course of business) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party for consideration in excess of $125,000 25,000; (ii) Contracts relating to the incurrence, assumption or guarantee of any debt; (iii) any other Contracts (or groups of related Contracts) that are not terminable by the Company or any other Subsidiary without penalty on notice of sixty (60) days or less, which involve the expenditure or receipt of more than $50,000 annually or more than $250,000 in 150,000 over the aggregate; remaining term; (iv) which includes Contracts that contain a change of control or other similar provision; (v) Contracts restricting the ability of the Company or any non-competition, non-solicitation, standstill Subsidiary to operate or similar restrictions compete in any business or undertakings on with any Person or in any geographic area during any period of time; (vi) Contracts that require the Company or its Subsidiary; Subsidiaries to purchase minimum quantities (vor pay any amount for failure to purchase any specific quantities) pursuant of goods or services, comply with “take or pay” arrangements, deal with any Person on an exclusive basis, or provide “most favored nations” or similar pricing to which any Person; (vii) Contracts that require the Company or its any Subsidiary has directly to indemnify or indirectly guaranteed indebtedness, liabilities or obligations of hold harmless any other Person or pursuant to which any (other Person has directly or indirectly guaranteed indebtedness, liabilities or than obligations of the Company or its Subsidiary; Subsidiaries to indemnify its customers against third party intellectual property claims contained in the Company Form License Agreements); (viviii) which provides Contracts that provide for any mortgagepartnership, pledgejoint venture, security agreementstrategic alliance, deed teaming or similar arrangement; (ix) Contracts that provide for or relate to any employment or consulting relationship with any Person (other than at-will arrangements), including any stock option, stock purchase, stock appreciation, deferred compensation, severance of trust other similar equity or other instrument equity-like plan or arrangement involving current or former directors, managers, stockholders, officers, or employees; (x) Contracts under which the Company or any Subsidiary grants or is granted a license of any Intellectual Property (other than Company Form License Agreements and licenses to the Company or its Subsidiaries, as applicable, of commercially available software for total consideration of less than $15,000); (xi) Contracts with any Governmental Authority, including any settlement, conciliation or similar agreements with any Governmental Authority; (xii) Contracts granting a power of attorney; (xiii) Contracts relating to the sales or purporting distributions of the Company’s or its Subsidiary’s products or services (excluding purchase and sales orders entered into in the ordinary course of business and Company Form License Agreements); and (xiv) Contracts that are otherwise material to ▇▇▇▇▇ ▇ ▇▇▇▇ the business, operations or security interest upon any intellectual property rights financial condition of the Company or its Subsidiary or any other material assets or group of assets of Subsidiaries and is outside the Company Company’s or its Subsidiary; ’s ordinary course of business; (b) True, correct and complete copies of all Material Contracts as currently in effect have previously been delivered to Fresh Vine. To the Knowledge of the Company, no other party to a Material Contract has breached, violated or defaulted under any Material Contract and no circumstance exists that, with notice or lapse of time or both (vii) which is not terminable by including the Company or its Subsidiary Merger), would constitute a default by notice of not more than 30 days without the payment of any material penalty or premiumparty. Each Contract, commitment or understanding required to be listed in Section 3.01(bb3.11(b) of the Company Disclosure Schedule (collectively, sets forth summaries containing the "Company terms of all oral Material Contracts") is in full force and effect and is enforceable against the Company or its Subsidiary (and, to the knowledge of the Company, against the other parties thereto) in accordance with its terms, except that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the Company nor its Subsidiary nor, to the Company's knowledge, any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, which in each case would reasonably be expected to materially impair the benefits expected to be derived therefrom.

Agreements, Contracts and Commitments. (a) Section 3.01(bb3.12(a) of the Disclosure Schedules lists each of the following contracts of the Company (such contracts, together with all contracts concerning the occupancy, management or operation of any Leased Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.12(a) of the Disclosure Schedule lists Schedules and all Material Company IP Contracts, commitments and understandings of any kind to which the Company or its Subsidiary is a party or by or to which the Company, its Subsidiary or any of their respective properties or assets is bound or subject, whether or not in writing, being “Material Contracts”): (i) which is material to the continued conduct of the business each Contract of the Company and its Subsidiary as currently conducted or as currently contemplated to be conducted; (ii) which is with respect to the Company's San Diego facility contract services business and under which the Company has any current or future obligation to provide any products or services; (iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party involving aggregate consideration in excess of $125,000 annually 50,000 and which, in each case, cannot be cancelled by the Company without penalty or $250,000 in without more than 90 days’ notice; (ii) all Contracts that require the aggregate; Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (iii) all Contracts the primary purpose of which is the indemnification by the Company of any Person or the assumption of any Tax, environmental or other Liability of any Person; (iv) which includes any non-competition, non-solicitation, standstill all Contracts entered into during the three (3) years prior to the date hereof or similar restrictions or undertakings on that have outstanding payment obligations by the Company and relate to the acquisition or its Subsidiary; (v) pursuant to which disposition of any Person by the Company Company, a material amount of stock or its Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations assets of any other Person or pursuant any real property (whether by merger, sale of stock, sale of assets or otherwise); (v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Company is a party; (vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; (vii) except for Contracts relating to trade payables, all Contracts relating to Indebtedness (including, without limitation, guarantees) of the Company; (viii) all Contracts with any other Person has directly Governmental Authority to which the Company is a party (“Government Contracts”); (ix) all Contracts that limit or indirectly guaranteed indebtedness, liabilities or obligations purport to limit the ability of the Company to compete in any line of business or its Subsidiary; with any Person or in any geographic area or during any period of time; (vix) any Contracts to which provides the Company is a party that provide for any mortgagejoint venture, pledge, security agreement, deed of trust partnership or other instrument similar arrangement by the Company; (xi) all Contracts between or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights of among the Company or its Subsidiary on the one hand and Seller or any Affiliate of Seller (other material assets than the Company) on the other hand; (xii) all collective bargaining agreements or group of assets of Contracts with any labor union to which the Company or its Subsidiaryis a party; or and (viixiii) which any other Contract that is not terminable by material to the Company or its Subsidiary by notice of and not more than 30 days without the payment of any material penalty or premium. previously disclosed pursuant to this Section 3.12. (b) Each Contract, commitment or understanding required to be listed in Section 3.01(bb) of Material Contract is valid and binding on the Company Disclosure Schedule (collectively, the "Company Material Contracts") in accordance with its terms and is in full force and effect and is enforceable against the Company or its Subsidiary (andeffect, subject to the knowledge of the CompanyEnforceability Exceptions. There are no Material Contracts that are not in written form. The Company has not, against the other parties thereto) in accordance with its terms, except that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the Company nor its Subsidiary nor, to the Company's knowledge’s Knowledge, as of the date of this Agreement, has any other party to a Material Contract, materially breached, violated or defaulted under, or received notice that it materially breached, violated or defaulted under, any Company of the terms or conditions of any Material Contract, except as would not, individually or in the aggregate, reasonably be likely to be material to the Company. In all material respects, all obligations under the terms of each Material Contract is in violation of required to be performed by the Company has been performed to the extent such obligations to perform have accrued, and no act or in default under (nor does there exist any condition omission by the Company has occurred or failed to occur which, upon with the passage giving of notice, the lapse of time or the giving of notice or both, both would cause such constitute a violation of or default under) any Company , such Material Contract, which except as it would not, individually or in each case would the aggregate, reasonably be expected to materially impair the benefits expected likely to be derived therefrommaterial to the Company.

Agreements, Contracts and Commitments. Section 3.01(bb(a) The Company Disclosure Schedule lists each of the following contracts and agreements (including, without limitation, oral and informal arrangements) of the Company and its Subsidiaries (such contracts and agreements, together with all contracts, agreements, leases and subleases concerning the management or operation of any real property (including, without limitation, brokerage contracts) listed or otherwise disclosed in the Company Disclosure Schedule lists all Contracts, commitments and understandings of any kind to which the Company or any of its Subsidiary Subsidiaries is a party and all agreements relating to Intellectual Property set forth in the Company Disclosure Schedule, being "Company Material Contracts"): (i) each contract, agreement, invoice, purchase order and other arrangement, for the purchase of inventory, spare parts, other materials or by personal property with any supplier or for the furnishing of services to which the Company, its Subsidiary Company or any of their respective properties its Subsidiaries or assets is bound or subject, whether or not in writing, (i) which is material otherwise related to the continued conduct of the business of the Company or any of its Subsidiaries under the terms of which: (A) the Company or any of its Subsidiaries is likely to pay or otherwise give consideration of more than $25,000 in the aggregate during the calendar year ended December 31, 2005, (B) the Company or any of its Subsidiaries is likely to pay or otherwise give consideration of more than $50,000 in the aggregate over the remaining term of such contract, or (C) cannot be cancelled by the Company or any of its Subsidiaries, as applicable, without penalty or further payment and its Subsidiary as currently conducted or as currently contemplated to be conducted; without more than 30 days' notice; (ii) which is with respect to each contract, agreement, invoice, sales order and other arrangement, for the Company's San Diego facility contract sale of inventory or other personal property or for the furnishing of services business and under which by the Company has or any current of its Subsidiaries which: (A) is likely to involve consideration of more than $25,000 in the aggregate during the calendar year ended December 31, 2005, (B) is likely to involve consideration of more than $50,000 in the aggregate over the remaining term of the contract, or future obligation to provide (C) cannot be cancelled by the Company or any products of its Subsidiaries, as applicable, without penalty or services; further payment and without more than 30 days' notice; (iii) which is not covered by clause (ii) all broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing, consulting and which pursuant to its terms imposes current or future payment obligations on either party in excess of $125,000 annually or $250,000 in the aggregate; (iv) which includes any non-competition, non-solicitation, standstill or similar restrictions or undertakings on the Company or its Subsidiary; (v) pursuant advertising contracts and agreements to which the Company or any of its Subsidiary has directly Subsidiaries is a party; (iv) all management contracts and contracts with independent contractors or indirectly guaranteed indebtedness, liabilities consultants (or obligations of any other Person or pursuant similar arrangements) to which the Company or any other Person has directly of its Subsidiaries is a party and which are not cancelable without penalty or indirectly guaranteed indebtedness, liabilities or obligations further payment and without more than 30 days' notice; (v) all contracts and agreements relating to indebtedness of the Company or any of its Subsidiary; Subsidiaries; (vi) all contracts and agreements with any Governmental Authority to which provides for the Company or any mortgage, pledge, security agreement, deed of trust or other instrument or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights its Subsidiaries is a party; (vii) all contracts and agreements that limit the ability of the Company or any of its Subsidiary Subsidiaries to compete in any line of business or with any other material assets Person or group in any geographic area or during any period of assets of time; (viii) all contracts and agreements between or among the Company or its Subsidiaryany affiliate or Subsidiary of the Company; (ix) all contracts and agreements for providing benefits under any Benefit Plan (as hereinafter defined); and (x) all other contracts and agreements, whether or (vii) not made in the ordinary course of the business, which is not terminable by are material to the Company or any of its Subsidiary by notice Subsidiaries or the conduct of not more than 30 days without their respective businesses, or the payment absence of which would have a Company Material Adverse Effect. For purposes of this Agreement, the term "lease" shall include any material penalty and all leases, subleases, sale/leaseback agreements or premium. Each Contract, commitment or understanding required to be listed similar arrangements. (b) Except as disclosed in Section 3.01(bb) of the Company Disclosure Schedule (collectivelySchedule, the "each Company Material Contracts"Contract: (i) is valid and binding on the respective parties thereto and is in full force and effect and is enforceable against (ii) upon consummation of the transactions contemplated by this Agreement, except to the extent that any consents set forth in the Company or its Subsidiary (andDisclosure Schedule are not obtained, to the knowledge of the Company, against the other parties thereto) shall continue in accordance with its terms, except that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium full force and effect without penalty or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principlesadverse consequence. Neither the Company nor any of its Subsidiary norSubsidiaries is in breach of, to the Company's knowledgeor default under, any Company Material Contract, as applicable. (c) Except as disclosed in the Company Disclosure Schedule, no other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of breach thereof or default underthereunder. (d) Except as disclosed in the Company Disclosure Schedule, there is no contract, agreement or other arrangement granting any Person any preferential right to purchase, other than in the ordinary course of the business consistent with past practice, any of the properties or assets of the Company Material Contract, which in each case would reasonably be expected to materially impair the benefits expected to be derived therefromor any of its Subsidiaries.

Agreements, Contracts and Commitments. Section 3.01(bb(a) Schedule 4.18 of the Company Disclosure Schedule lists all ContractsLetter sets forth a true, commitments correct and understandings complete list of any kind each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Company shall mean each Company Real Property Lease and each of the following Contracts to which the Company or its Subsidiary is a party party: (i) Each Contract (including purchase orders with suppliers or customers) that the Company reasonably anticipates will involve annual payments or consideration furnished by or to which the Company of more than $25,000; (ii) Each note, debenture, other evidence of indebtedness, guarantee, loan, credit or financing agreement or instrument or other contract for money borrowed by the Company from a third party; (iii) Each Contract related to any material equipment used in the manufacturing, packaging and/or distribution of the Company’s products, including, without limitation, all Contracts concerning the Software and technology related thereto or the maintenance thereof; (iv) Each Contract for the acquisition of any Person or any business division thereof or the disposition of any material assets of the Company, its Subsidiary in each case, whether by merger, purchase or sale of stock or assets or otherwise occurring in the last three years, other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing (other than customary non-disclosure and similar obligations incidental thereto) or (B) entered into in the ordinary course of business; (v) Each collective bargaining (or similar) agreement or Contract with any labor union or other body representing employees of the Company; (vi) Each lease, rental agreement, installment and conditional sale agreement, or other Contract that, in each case, (A) provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any personal property; and (B) involves annual payments in excess of their respective properties $25,000; (vii) Each joint venture Contract, partnership agreement or assets is bound limited liability company agreement with a third party; (viii) Each agreement with any Affiliate of the Company; (ix) Each Contract with any current or subjectformer employee or consultant of the Company; (x) Each Contract, whether other than customary non-disclosure agreements, that contains covenants expressly limiting in any material respect the freedom of the Company to: (A) compete with any Person in a product line or not line of business; (B) operate in writingany geographic area; or (C) solicit customers; (xi) Each Contract providing for indemnification or any guaranty by the Company, (i) which in each case that is material to the continued conduct Company, other than (A) any guaranty by the Company of any of the business obligations of the Company and its Subsidiary as currently conducted or as currently contemplated (B) any Contract providing for indemnification of customers or other Persons pursuant to be conducted; Contracts entered into in the ordinary course of business; (iixii) which is Each Contract that grants any right of first refusal, right of first offer, or similar right with respect to any material assets, rights, or properties of the Company's San Diego facility contract services business and under which ; (xiii) any Contract that obligates the Company has any current to conduct business on an exclusive or future obligation to provide any products preferential basis or services; (iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party in excess of $125,000 annually or $250,000 in the aggregate; (iv) which includes any non-competition, non-solicitation, standstill that contains a “most favored nation” or similar restrictions covenant with any third party or undertakings on upon consummation of the Transactions will obligate Iconic or the Company to conduct business on an exclusive or its Subsidiary; preferential basis; (vxiv) Each Contract (including any license agreement, coexistence agreement and agreement with a covenant not to ▇▇▇) pursuant to which the Company either (A) grants to a third Person a license, immunity, or its Subsidiary has directly other right in or indirectly guaranteed indebtednessto any material Owned Intellectual Property or (B) is granted by a third Person a license, liabilities immunity, or obligations of other right in or to any other Person Intellectual Property or pursuant IT Systems material to which any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations the business of the Company or its Subsidiary; (vi) which provides for any mortgageCompany, pledgeprovided, security agreementhowever, deed of trust or other instrument or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights that none of the Company or its Subsidiary or any other material assets or group of assets of the Company or its Subsidiary; or (vii) which is not terminable by the Company or its Subsidiary by notice of not more than 30 days without the payment of any material penalty or premium. Each Contract, commitment or understanding following shall be required to be listed in Section 3.01(bbset forth on Schedule 4.18(a)(xiv) of the Company Disclosure Schedule (collectively, the "Letter but shall constitute Company Material Contracts"Contracts if they otherwise qualify: (x) is non-exclusive licenses of Owned Intellectual Property granted by the Company to customers in the ordinary course of business consistent with past practice; (y) licenses of open source Software; and (z) click-wrap, shrink-wrap and off-the-shelf Software licenses of customized Software that are available on standard terms to the public generally with license, maintenance, support and other fees less than $5,000 per year; and (xv) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xiv) of this Section 4.18(a). (b) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company, all Company Material Contracts are: (i) in full force and effect effect, subject to the Remedies Exception and is enforceable against (ii) represent the legal, valid and binding obligations of the Company or its Subsidiary (and, to the knowledge Knowledge of the Company, against represent the legal, valid and binding obligations of the other parties thereto) . True, correct and complete copies of all Company Material Contracts in accordance with its terms, except that such enforcement may be subject effect as of the date hereof have been made available to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principlesIconic. Neither the Company nor its Subsidiary nor, to the Knowledge of the Company's knowledge, any other party thereto, is in material breach of or default under, and to the Knowledge of the Company, no event has occurred which with notice or lapse of time or both would become a material breach of or default under, any of the Company Material Contracts, and no party to any Company Material Contract is in violation has given any written or, to the Knowledge of the Company, oral, claim or in notice of any such material breach, default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, which in each case would reasonably be expected to materially impair the benefits expected to be derived therefromevent.

Agreements, Contracts and Commitments. Section 3.01(bb) of Article 18 Except as provided to Parent in the Disclosure Binder delivered herewith, the Company Disclosure Schedule lists all Contracts, commitments and understandings of any kind to which the Company or its Subsidiary is not a party to or by or to which the Company, its Subsidiary or any of their respective properties or assets is bound or subject, whether or not in writing, by: (i) which is material to the continued conduct any lease or sublease (whether of the business real or personal property) providing for annual rentals of the Company and its Subsidiary as currently conducted $25,000 or as currently contemplated to be conducted; more; (ii) which is with respect to any agreement for the Company's San Diego facility contract services business and under which purchase or license of materials, supplies, goods, services, equipment or other tangible or intangible assets providing for either Article 19 annual payments by the Company has any current of $50,000 or future obligation to provide any products more or services; Article 20 aggregate payments by the Company of $50,000 or more; (iii) which is not covered any license, sales, distribution or other similar agreement providing for the sale or license by clause (ii) and which pursuant the Company of materials, supplies, goods, services, equipment or other assets that provides for either Article 21 annual payments to its terms imposes current or future payment obligations on either party in excess the Company of $125,000 annually 50,000 or more or Article 22 aggregate payments to the Company of $250,000 in the aggregate; 50,000 or more; (iv) which includes any non-competitionpartnership, non-solicitationjoint venture or other similar agreement or arrangement, standstill or similar restrictions or undertakings on the Company or its Subsidiary; other than those related to Salvador Systems LLC; (v) pursuant any agreement, contract or commitment relating to which the Company acquisition or its Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations disposition of any other Person business (whether by merger, sale of stock, sale of assets or pursuant to which any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or its Subsidiary; otherwise); (vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $50,000 and which provides for any mortgage, pledge, security agreement, deed of trust or other instrument or arrangement granting or purporting to ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest upon any intellectual property rights of the Company or its Subsidiary or any other material assets or group of assets of the Company or its Subsidiary; or (vii) which is not terminable by the Company or its Subsidiary by notice of may be prepaid on not more than 30 days days’ notice without the payment of any penalty; (vii) except for agreements by the Company with customers in the ordinary course of business consistent with past practices, any option (other than employee stock options), license, franchise or similar agreement; (viii) any alliance, agency, dealer, sales representative, marketing, distribution, original equipment manufacturer, remarketer, joint marketing, channel partner or other similar agreement that does not provide for termination without compensation upon no more than 30 days notice; (ix) any development or collaboration agreement or other agreement for development of products and services for the Company; (x) any agreement that limits the freedom of the Company to compete in any line of business or with any Person or in any area or which could reasonably be expected to so limit the freedom of the Company after the Effective Time; (xi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, other than those mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments that are not, individually or in the aggregate, material penalty to the Company; (xii) any agreement with any Affiliate of the Company, with any director or premium. Each Contractofficer of the Company, or with any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the ▇▇▇▇ ▇▇▇) of any such director or officer; or (xiii) any employment or consulting agreement, contract or commitment with an employee or understanding required to be listed individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization other than as contemplated under this Agreement; (xiv) any employment or consulting agreement or any agreement with severance, change in Section 3.01(bbcontrol or similar arrangements, that will result in any obligation (absolute or contingent) of the Company Disclosure Schedule to make any payment as a result of the consummation of the Merger, termination of employment or both; (collectivelyxv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the "Company Material Contracts"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; or (xvi) any other agreement, commitment, arrangement or plan not made in the ordinary course of business that is in full force and effect and is enforceable against the Company or its Subsidiary (and, material to the knowledge of the Company, against the other parties thereto) in accordance with its termsincluding without limitation, except that such enforcement may be subject any agreement involving annual payments by any customer to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the Company nor its Subsidiary nor, to the Company's knowledge, any other party to any Company Material Contract is in violation excess of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, which in each case would reasonably be expected to materially impair the benefits expected to be derived therefrom$150,000.

Agreements, Contracts and Commitments. Section 3.01(bb) Item 3.17 of the Company Seller Disclosure Schedule lists all Contractssets forth a complete and correct list of each existing contract, commitments agreement or commitment of ▇▇▇-▇▇▇▇▇▇ (other than the agreements described in the definition of Permitted Exceptions set forth in Section 3.13(2)): (1) upon which any substantial part of its business is dependent or which, if breached, would be reasonably likely to have a Material Adverse Effect on ▇▇▇-▇▇▇▇▇▇; (2) which provides for aggregate future payments of more than $5,000, except for purchase orders or sale orders arising in the ordinary and understandings usual course of business, in which case they are listed only if any party thereto is obligated to make payments pursuant thereto aggregating more than $25,000; (3) which extends for more than one hundred eighty (180) days from the date hereof and is not cancelable by either party on 30 days' notice or less; (4) which provides for the sale after the date hereof and other than in the ordinary course of business, of any kind to which the Company or of its Subsidiary is a party or by or to which the Company, its Subsidiary or any of their respective properties or assets is bound or subject, whether or not in writing, assets; (i5) which is material relates to the continued conduct employment compensation, retirement or termination of the business services of the Company and its Subsidiary as currently conducted any officer or as currently contemplated to be conducted; (ii) which is employee or former officer or employee, including bonus, incentive, pension, profit-sharing, hospitalization, insurance, deferred compensation, retirement, stock option or stock purchase plans or similar plans providing employee benefits for or with respect to the Company's San Diego facility contract services business and under which the Company has any current officer or future obligation to provide any products or services; employee; (iii6) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations on either party in excess of $125,000 annually or $250,000 in the aggregate; (iv) which includes any non-competition, non-solicitation, standstill or similar restrictions or undertakings on the Company or its Subsidiary; (v) contains covenants pursuant to which any person or entity has agreed not to compete with the Company or its Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations business of any other Person or not to disclose to others information concerning such other Person; (7) which relates to the sale or other disposition of goods or services and which (i) involve terms or quantities exceeding normal commitments or in the ordinary course of business or (ii) contain special pricing terms or other provisions which would prohibit or limit the ability of Buyer to effect price increases; (8) pursuant to which title to any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations assets of the Company or its Subsidiary; (vi) which provides for any mortgage, pledge, security agreement, deed of trust or other instrument or arrangement granting or purporting to ▇▇▇-▇▇▇▇▇▇ ▇ ▇▇▇▇ may be encumbered; or (9) which relates to any partnership, joint venture or security interest upon other arrangement involving a sharing of profits from any intellectual property rights enterprise. Each of the Company or its Subsidiary or any other material assets or group of assets of the Company or its Subsidiary; or (vii) which foregoing is not terminable by the Company or its Subsidiary by notice of not more than 30 days without the payment of any material penalty or premium. referred to in this Agreement as a "Material Contract." Each Contract, commitment or understanding required to be listed in Section 3.01(bb) of the Company Disclosure Schedule (collectively, the "Company Material Contracts") Contract is in full force and effect and is enforceable against there has not occurred, with respect to any such Material Contract, any default or event of default, which, with or without due notice or with the Company lapse of time or its Subsidiary (andboth, would constitute a default or event of default on the part of ▇▇▇-▇▇▇▇▇▇ or, to the best knowledge of the Company, against the other parties thereto) in accordance with its terms, except that such enforcement may be subject to (y) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the Company nor its Subsidiary nor, to the Company's knowledgeSeller, any other party to any Company thereto, except where such default or event of default would not have a Material Adverse Effect on ▇▇▇-▇▇▇▇▇▇. Complete copies of each Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, which in each case would reasonably be expected have been delivered to materially impair the benefits expected to be derived therefromBuyer.