Common use of Agreements, Contracts and Commitments Clause in Contracts

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target nor any of its Subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or member of Target's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effect; (c) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target or any of its Subsidiaries to engage in any line of business or to compete with any person; or (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target nor any of its Subsidiaries, nor to Target's knowledge any other party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effect.

Agreements, Contracts and Commitments. As Except as otherwise set forth ------------------------------------- in Part 2.17 of the Company Disclosure Schedule, as of the date of ------------------------------------- this Agreement, hereof neither Target the Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Targetthe Company's Board of Directors, other than those that are terminable by Target the Company or any of its Subsidiaries subsidiaries on no more than 30 thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Targetthe Company's or any of its Subsidiariessubsidiaries' ability to terminate employees at will; (b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software or hardware products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (c) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target the Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target the Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Targetthe Company's Subsidiariessubsidiaries; (e) any joint marketing or development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which the Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company or any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; or (f) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a whole. Neither Target the Company nor any of its Subsidiariessubsidiaries, nor to Targetthe Company's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target the Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target the Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Company Disclosure Schedule pursuant to clauses (a) through (f) above or pursuant to Section 2.9 hereof or are required to be filed with any Company SEC Report (any such agreement, contract or commitment, a "Target Company Contract") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of Except as set forth in the date of ------------------------------------- this AgreementNathan's Schedules, neither Target Nathan's nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any collective bargaining agreements; (b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (c) any employment or consulting agreement, contract or commitment with any officer or member of Target's Board of Directorsdirector level employee, other than those that are not terminable by Target Nathan's or any of its Subsidiaries subsidiaries on no more than 30 thirty days notice without liability or financial obligationliability, except to the extent general principles of wrongful termination law may limit TargetNathan's or any of its Subsidiariessubsidiaries' ability to terminate employees at will; (bd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (e) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between Nathan's or guarantee might reasonably result in a Target Material Adverse Effectany of its subsidiaries and any of its officers or directors; (cf) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target Nathan's or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; or; (dg) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty; (h) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise enterprise; (i) any mortgages, indentures, loans or credit agreements, security agreements or other than Target's Subsidiaries. Neither Target nor agreements or instruments relating to the borrowing of money or extension of credit; (j) any of its Subsidiaries, nor to Target's knowledge joint marketing or development agreement; (k) any distribution agreement (identifying any that contain exclusivity provisions); or (l) any other party to a Target Contract agreement, contract or commitment (as defined below), is in breach, violation or default under, excluding real and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters personal property leases) which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target involves payment by Nathan's or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (subsidiaries under any such agreement, contract or commitment, a "Target Contract"commitment of $100,000 or more in the aggregate and is not cancelable without penalty within thirty (30) in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectdays.

Agreements, Contracts and Commitments. As (a) There are no contracts, agreements or instruments that are material to the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole (collectively, the "Company Material Contracts"), that have not been filed as exhibits to the Company SEC Reports filed prior to the date of ------------------------------------- this Agreement. The Company has made available to the Buyer complete and accurate copies of the Company Material Contracts. Each Company Material Contract is in full force and effect and is enforceable in accordance with its terms, except for such failures to be in full force and effect and enforceable as would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries nor, to the Company's knowledge, any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, except for such violations and defaults as would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. (b) Except as set forth in the Company SEC Reports filed prior to the date of this Agreement, neither Target the Company nor any of its Subsidiaries has entered into any transaction with any director, officer or other Affiliate of the Company or any of its Subsidiaries or any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K. (c) Except for field of use or territorial limits on the rights granted by third parties to the Company or its Subsidiaries set forth in the agreements or instruments granting such rights, (i) there is no non-competition or other similar agreement, commitment, judgment, injunction or order to which the Company or any of its Subsidiaries is a party or subject that has or could reasonably be expected to have the effect of prohibiting or materially impairing the conduct of the business by the Company or any of its Subsidiaries, taken as a whole, and (ii) neither the Company nor any of its Subsidiaries has entered into (or is otherwise bound by) any agreement under which it is restricted, in any material respects, from selling, licensing or otherwise distributing any of its technology or products, or providing its services, to customers or potential customers or any class of customers, in any geographic area, during any period of time. (d) To the Company's knowledge, neither the Company nor any of its Subsidiaries is a party to any agreement under which a third party would be entitled to receive a license or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or member other right to intellectual property of Target's Board of Directors, other than those that are terminable by Target the Buyer or any of its Subsidiaries on no more the Buyer's Affiliates (other than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of Company and its Subsidiaries' ability to terminate employees at will; (b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably as a result in a Target Material Adverse Effect; (c) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target or any of its Subsidiaries to engage in any line of business or to compete with any person; or (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target nor any of its Subsidiaries, nor to Target's knowledge any other party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any consummation of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or transactions contemplated by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectthis Agreement.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries material subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit TargetCompany's or any of its Subsidiariessubsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries material subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any material agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any material joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; or (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology except as a distributor in the normal course of business. Neither Target Company nor any of its Subsidiariesmaterial subsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule Company Schedules pursuant to clauses (a) through (h) above or pursuant to Section 2.9 hereof (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of (a) Neither the date of ------------------------------------- this Agreement, neither Target Company nor any of its Subsidiaries is a party to or is bound by: (ai) any written employment or consulting agreement, contract or commitment with any officer officer, director, Employee or member of Target's Board of Directorsthe Company Boards, or any service, operating or management agreement, other than those that are terminable by Target the Company or any of its Subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's Company or any of its Subsidiaries' ability to terminate employees at will; (bii) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with a Lease in respect of real property not situated in Israel for the benefit of the landlord and its mortgage or in connection with the sale or license of software products in the ordinary course of business where such consistent with past practice pursuant to the Company's standard form agreement or guarantee might reasonably result in a Target Material Adverse Effectpreviously delivered by the Company to the Buyer; (ciii) any agreement, contract or commitment material Contract containing any covenant limiting in any material respect the right of Target the Company or any of its Subsidiaries to engage in any line of business or to compete with any person; orperson or entity or granting any exclusive distribution rights; (div) any agreement, contract or commitment Contract currently in force relating to the disposition or acquisition by Target the Company or any of its Subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target the Company or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target the Subsidiaries of the Company; (v) any dealer, distributor, joint marketing or development Contract currently in force under which the Company or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which the Company or any of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company or any of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (vi) any Contract currently in force to license any third party to manufacture or reproduce any product, service or technology of the Company or any of its Subsidiaries or any Contract currently in force to sell or distribute any products, service or technology of the Company or any of its Subsidiaries except agreements with distributors or sales representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to the Buyer; (vii) any Contract currently in force to provide source code or design specifications to any third party for any product or technology that is material to the Company and its Subsidiaries taken as a whole; (viii) any mortgages, indentures, guarantees, other Encumbrances, loans or credit agreements, security agreements or other agreements or instruments relating to, or securing, the borrowing of money or extension of credit (other than mortgages made by a landlord under a Lease to which mortgage the Company is not a party but the Lease may be subject); (ix) any material settlement agreement under which the Company has ongoing obligations. (b) Other than Leases, neither the Company nor any of its SubsidiariesSubsidiaries nor, nor to Targetthe Company's knowledge knowledge, any other party to a Target Contract (as defined below)Company Contract, is in breach, violation or default under, and neither Target the Company nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") Company Contract in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely (for any or all of such breaches, violations or defaults, in the aggregate), subject to the representations and warranties contained in Section 3.13, including without limitation, Section 3.13(c). The Company has made available to the Buyer true and correct copies of any Contracts (excluding purchase orders) the Company and its Subsidiaries may have a Target Material Adverse Effectwith its top ten customers measured by revenue. (c) Neither the Company nor any of its Subsidiaries is restricted by agreement from carrying on its business anywhere in the world. (d) Neither the Company nor any of its Subsidiaries has any power of attorney outstanding or any obligations or liabilities (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any Person, corporation, partnership, joint venture, association, organization or other entity.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer officer, director, Company employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any material agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that has a value of $500,000 or more individually. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as set forth in Section 2.16 and Section 2.2(b) of the date of ------------------------------------- this AgreementCompany Disclosure Letter, neither Target nor any of its Subsidiaries the Company is not a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of Target's the Company’s Board of Directors, other than those that are terminable by Target or any of its Subsidiaries the Company on no more than 30 thirty (30) days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between the Company and any of its officers or guarantee might reasonably result in a Target Material Adverse Effectdirectors; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target or any of its Subsidiaries the Company to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or (f) any material joint marketing or development agreement. Neither Target nor any of its SubsidiariesThe Company, nor or to Target's the Company’s knowledge any other party to a Target Company Contract (as defined belowherein), is in breachhas breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries the Company is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described in the Target Disclosure Schedule clauses (a) through (f) above (any such agreement, contract or commitment, a "Target Contract"“COMPANY CONTRACT”) in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remediesdamages, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectbe material to the Company.

Agreements, Contracts and Commitments. As (a) Schedule 2.7(a) identifies, and the Company has made available to Buyer via the virtual data room, true, complete and correct copies of each of the date of ------------------------------------- this Agreement, neither Target nor following Contracts to which the Company or any of its Subsidiaries is a party to or is bound by:(each, a “Company Material Contract” and, collectively, the “Company Material Contracts”): (ai) any employment agreement or consulting any other agreement, contract or commitment with any officer or member of Target's Board of Directors, (other than those that are terminable by Target standard offer letters sent in the Ordinary Course of Business and At-Will Employee Contracts) pursuant to which the Company or any of its Subsidiaries on no more than 30 days notice without liability is or financial obligationmay become obligated to pay compensation or benefits to any employee, except to executive officer or director of the extent general principles of wrongful termination law may limit Target's Company or any of its Subsidiaries' ability to terminate employees at will; (bii) any agreement Contract that contains a non-competition provision that (A) prohibits or materially limits (or would materially limit after the date hereof) the freedom or ability of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effect; (c) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries to engage in any line type of business in any geographic area, or to compete with (B) creates any person; orexclusive relationship; (diii) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant Contract to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target nor any of its Subsidiaries, nor to Target's knowledge any other party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries is a party (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities of any of the Company or any of its Subsidiaries, (B) providing any Person with any preemptive right or any similar right with respect to any securities of any of the Company or any of its Subsidiaries, or (C) providing the Company or any of its Subsidiaries with any right of first refusal with respect to, or right to repurchase or redeem, any securities of the Company or any of its Subsidiaries; (iv) any Contract (or group of related agreements with the same third parties) under which the Company or any of its Subsidiaries created, incurred, assumed or guaranteed any Debt or hedge transaction in excess of $1,000,000; (v) any Contract that contemplates or involves the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries in an amount or having a value in excess of $1,000,000 in the aggregate, or contemplates or involves the performance of services or sale of goods by or to the Company or any of its Subsidiaries having a value in excess of $1,000,000 in the aggregate; (vi) the Organizational Documents of the Company and its Subsidiaries and any other partnership, limited liability company, joint venture or other similar agreement that is material to the Company and its Subsidiaries and any Contract which provides for the sharing of any profits with the Company or any Subsidiary; (vii) consulting, agency or advertising Contracts related to the Assets or the Businesses of the Company or any of its Subsidiaries, and involving payment to or by the Company or any of its Subsidiaries in excess of $500,000, except for such Contracts that are cancelable on not more than thirty (30) days’ notice by the Company or any of its Subsidiaries without penalty or increased cost; (viii) Contracts relating to acquisition, sale or use of Intellectual Property, whether the Company or any of its Subsidiaries is the licensor or licensee thereunder (but excluding off-the-shelf or prepackaged software license agreements) having a value in excess of, or under which the Company or Subsidiary is obligated to pay or is entitled to receive amounts in excess of $100,000 annually; (ix) Contracts for the purchase or sale of any business, corporation, partnership, joint venture, association or other business organization or any division, operating unit or product line of the Company or any of its Subsidiaries or Assets other than current Assets with a purchase price in excess of $500,000; (x) any Contract granting another Person an option to purchase or sell (A) personal property or Assets of the Company or any of its Subsidiaries having a value in excess of $500,000 or (B) any interest in Owned Real Property; (xi) Contracts pursuant to which the Company or any Subsidiary agrees to indemnify any Person or guaranty the obligations or performance of any Person, which indemnification or guaranty obligation is reasonably likely to exceed $500,000; (xii) any Contract (or group of related Contracts) pursuant to which the Company or any of its Subsidiaries has committed to purchase fixed Assets or real property having an aggregate value in excess of $1,000,000; and (xiii) any Contract with sales representatives or distributors to which the Company or any of its Subsidiaries is a party, other than At-Will Sales Rep Contracts. Each Material Contract is a valid and binding agreement of the Company or one of its Subsidiaries and is in full force and effect, and neither the Company nor any of its Subsidiaries is in material breach of or default under, or has received in writing any claim or threat that it is bound that are required to be filed as an exhibit to currently in material breach of or default under, any of the terms or conditions of any Company Material Contract and there does not exist any event or condition that, with notice or lapse of time, or both, could constitute a Target SEC Report material breach of or to be disclosed in default under any Material Contract. Neither the Target Disclosure Schedule (Company nor any such agreementof its Subsidiaries has received notice of a claim for indemnification under any Company Material Contract. To the knowledge of the Company, contract or commitment, a "Target Contract") in such a manner as would permit any no other party to cancel or terminate such contract is in default thereof in any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectmaterial respect.

Agreements, Contracts and Commitments. As of Except as set forth in ------------------------------------- the date of ------------------------------------- this AgreementOSI Disclosure Letter, neither Target OSI nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any collective bargaining agreements; (b) any agreements or arrangements that contain any severance pay or postemployment liabilities or obligations other than OSI Employee Plans; (c) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements other than OSI Employee Plans; (d) any employment or consulting agreement, contract or binding commitment with any officer or member of Target's Board of Directorsemployee, other than those that are not terminable by Target OSI or any of its Subsidiaries subsidiaries on no more than 30 thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willliability; (be) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (f) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between OSI or guarantee might reasonably result in a Target Material Adverse Effectany of its subsidiaries and any of its officers or directors; (cg) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target OSI or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; or; (dh) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $250,000 and not cancelable at will without penalty; (i) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise enterprise; (j) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (k) any joint marketing or development agreement, distribution agreement or royalty agreement; or (l) any other agreement, contract or commitment (excluding real and personal property leases) which require payment by OSI or any of its subsidiaries under any such agreement, contract or commitment of $250,000 or more in the aggregate and is not cancelable without penalty within thirty (30) days other than Target's Subsidiariespurchase order commitments for inventory in the ordinary course of business and consistent with past practices. Neither Target OSI nor any of its Subsidiariessubsidiaries, nor to TargetOSI's knowledge any other party to a Target an OSI Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries OSI is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described in the Target Disclosure Schedule clauses (a) through (l) above (any such agreement, contract or commitment, a an "Target OSI Contract") in such a manner as would permit any other party to cancel or terminate any such Target OSI Contract, or would permit any other party to seek damages or other remediesdamages, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse EffectEffect on OSI.

Agreements, Contracts and Commitments. As (a) Except as set forth on Section 4.19(a) of the date of ------------------------------------- this AgreementSeller Disclosure Letter, neither Target the Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Target's the Company’s Board of Directors, other than those that are terminable by Target the Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days’ notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Termination Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement or the Termination Agreement; (iii) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale sale, license, distribution, reselling or license other transfer of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectconnection with the provision of services in the ordinary course of business; (civ) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target the Company or any of its Subsidiaries subsidiaries to engage in any line of business presently conducted by the Company or any subsidiary, or to compete with any person; orperson or granting any exclusive distribution rights; (dv) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target the Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. the Company’s subsidiaries; (vi) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which the Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Seller or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less; (vii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a whole; (viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Products, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon written notice of ninety (90) days or less; (ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (x) any material settlement agreement entered into within three (3) years prior to the date of this Agreement; or (xi) any other material agreement, contract or commitment currently in force that is outside the ordinary course of business or that has a value of $50,000 or more within a twelve (12) month period in any individual case. (b) Neither Target the Company nor any of its Subsidiariessubsidiaries, nor to Target's Seller’s knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target the Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target the Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed set forth in the Target Seller Disclosure Schedule Letter (any such agreement, contract or commitment, a "Target “Company Contract"”) in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target (a) Neither Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetCompany's Board board of Directorsdirectors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions (either alone or upon the occurrence of any additional or subsequent events) contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions (either alone or upon the occurrence of any additional or subsequent events) contemplated by this Agreement; (iii) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license or purchase of software products or services in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (civ) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (dv) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiaries. Neither Target nor subsidiaries; (vi) any of its Subsidiariesdealer, nor to Target's knowledge any other party to a Target Contract (as defined below)distributor, is joint marketing or development agreement currently in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters force under which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries is a party subsidiaries have continuing material obligations to jointly market any product, technology or by service and which it is bound that are required to may not be filed as an exhibit to a Target SEC Report canceled without penalty upon notice of ninety (90) days or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contractless, or would permit any other party material agreement pursuant to seek damages which Company or other remediesany of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which cancellation, termination, damages may not be canceled without penalty upon notice of ninety (90) days or other remedies would be reasonably likely to have a Target Material Adverse Effect.less;

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreementhereof, except as provided in Company Schedule 2.17, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligationobligation to Company, except to the extent general principles (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of wrongful termination law may limit Target's Company or any of its Subsidiaries' ability subsidiaries to terminate employees at willmake any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, warrant agreement, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification entered into of officers, directors or employees of Company, except as provided for in connection with the sale Company's Articles of Incorporation or license Bylaws, or any guaranty of software products in the ordinary course third party indebtedness or of business where such agreement obligations of officers, directors, employees or guarantee might reasonably result in a Target Material Adverse Effectagents of Company; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business in any geographic area or to compete with any person; orperson or granting to any person any interest in Company's distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods or services of, or enter into a commercial relationship with, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 5,000 square feet; or (j) any other agreement, lease, contract or commitment that involves remaining obligations of Company of $10,000 or more individually. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule Company Schedules (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreementhereof, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetParent's Board of Directors, other than those that are terminable by Target Parent or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligationobligation to Parent, except to the extent general principles (ii) any such agreement, contract or commitment with any employee, consultant, stockholder or other person that will result in any obligation of wrongful termination law may limit Target's Parent or any of its Subsidiaries' ability subsidiaries to terminate employees at willmake any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or stockholder of Parent pursuant to which Parent has loaned or is obligated to loan any money thereto or (iv) any arrangement or agreement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification entered into in connection with the sale of officers, directors or license employees of software products in the ordinary course Parent or any guaranty of business where such agreement third party indebtedness or guarantee might reasonably result in a Target Material Adverse Effectof obligations of officers, directors, employees or agents of Parent; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Parent or any of its Subsidiaries subsidiaries to engage in any line of business in any geographic area or to compete with any person; orperson or granting to any person any interest in Parent's distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Parent or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetParent's Subsidiariessubsidiaries; (f) any contract containing exclusivity provisions pursuant to which Parent has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Parent to make any payments based on (i) the number of users accessing any website operated by Parent or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (k) any other agreement, contract or commitment that involves remaining obligations of Parent of $5,000,000 or more individually. Neither Target Parent nor any of its Subsidiariessubsidiaries, nor to TargetParent's knowledge any other party to a Target Parent Contract (as defined below), is in breach, violation or default under, and neither Target Parent nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Parent or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule Parent Schedules (any such agreement, contract or commitment, a "Target Parent Contract") in such a manner as would permit any other party to cancel or terminate any such Target Parent Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of Except as otherwise set forth in the date of ------------------------------------- this AgreementLaunch Disclosure Schedules, neither Target Launch nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer employee or member of TargetLaunch's Board of Directors, other than those that are terminable by Target Launch or any of its Subsidiaries subsidiaries on no more than 30 days days' notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit TargetLaunch's or any of its Subsidiariessubsidiaries' ability to terminate employees at will, or any consulting agreement; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification entered into in connection with the sale or license of software products in outside the ordinary course of Launch's business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectany guaranty; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Launch or any of its Subsidiaries subsidiaries or a Joint Venture to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Launch or any of its Subsidiaries subsidiaries or a Joint Venture after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Launch has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetLaunch's Subsidiariessubsidiaries or a Joint Venture; (f) any licensing, distribution, sponsorship, advertising, merchant program, encoding services, hosting or other similar agreement to which Launch or one of its subsidiaries or a Joint Venture is a party which may not be canceled by Launch or its subsidiaries or a Joint Venture, as the case may be, without penalty in excess of $10,000 upon notice of 30 days or less or which provides for payments by Launch or its subsidiaries or a Joint Venture in an amount in excess of $10,000 over the term of the agreement or to Launch or its subsidiaries or a Joint Venture in an amount in excess of $100,000 over the term of the agreement; (g) any agreement, contract or commitment currently in force to license or provide source code to any third party for any product or technology; or (h) any other agreement, contract or commitment currently in effect that is material to Launch's business as presently conducted. Neither Target Launch nor any of its Subsidiariessubsidiaries, nor to TargetLaunch's knowledge any Joint Venture or any other party to a Target Launch Contract (as defined below), is in breach, violation or default under, and neither Target Launch nor any of its Subsidiaries subsidiaries nor, to the knowledge of Launch, any Joint Venture has received written notice (except for notices delivered prior or to January 1its knowledge, 1995 regarding matters which were subsequently resolved or are no longer pendingany other form of notice) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Launch or any of its Subsidiaries subsidiaries or a Joint Venture is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Launch Disclosure Schedule Schedules pursuant to clauses (a) through (h) above or pursuant to Section 3.9 hereof (any such agreement, contract or commitment, a "Target ContractLAUNCH CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Contract, Launch Contract or would permit any other party to seek damages or other remedies, remedies the effect of which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse EffectEffect on Launch.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, except as set forth in Section 2.18 of the Company Schedule, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or employee of Company or any of its subsidiaries or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without material liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty pursuant to which Company may have liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise) in excess of $100,000, other than any agreement of indemnification entered into in connection with the sale of products or license of software products technology in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any dealer, distributor, joint marketing or development agreement under which Company or any of its subsidiaries have continuing obligations to jointly market any product, technology or service and which may not be canceled without material penalty upon notice of ninety (90) days or less, or any agreement pursuant to which Company or any of its subsidiaries have continuing obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without material penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (h) any agreement, contract or commitment to license any third party to manufacture or reproduce any Company Product or any agreement, contract or commitment to sell or distribute any Company Products except agreements with distributors or sales representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Company or any of its subsidiaries or extension of credit (other than customer accounts receivable owing to Company or any of its subsidiaries created in the ordinary course of business and payable or dischargeable in accordance with customary trade terms); (j) any material settlement agreement under which Company or any of its subsidiaries has ongoing obligations; (k) any agreement, contract or commitment under which Company is committed to provide products or services at a later date at a fixed price; (l) any other agreement, contract or commitment not otherwise disclosed in Section 2.18 of the Company Schedule that calls for the payment by Company or any of its subsidiaries of $100,000 or more in any calendar year; (m) any agreement not otherwise disclosed in Section 2.18 of the Company Schedule under which the consequences of a default could reasonably be expected to have a Material Adverse Effect on Company and its subsidiaries, taken as a whole; or (n) any other agreement, contract or commitment that is of the nature required to be filed by Company as an exhibit to an Annual Report on Form 10-K under the Exchange Act. Company has delivered or made available to Parent a correct and complete copy of each Company Contract (as defined below) as amended through the date of this Agreement. Each Company Contract, with respect to Company and any relevant subsidiary and, to Company's knowledge, all other parties thereto, is legal, valid, binding, enforceable and in full force and effect in all respects, except to the extent that any such invalidity would not reasonably be expected to be material to Company. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Contract (as defined below)Company Contract, is in breach, violation or default under, and neither Target under a Company Contract. Neither Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) within the last twelve months that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule pursuant to this Section 2.18 (any such agreement, contract or commitment, a ("Target ContractCOMPANY CONTRACT")) in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Section 3.01(bb) of the date of ------------------------------------- this AgreementCompany Disclosure Schedule lists all Contracts, neither Target nor any of its Subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or member of Target's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effect; (c) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target or any of its Subsidiaries to engage in any line of business or to compete with any person; or (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement commitments and understandings of any material assets not in the ordinary course of business or pursuant kind to which Target has any ownership interest in any corporation, partnership, joint venture the Company or other business enterprise other than Target's Subsidiaries. Neither Target nor any of its Subsidiaries, nor to Target's knowledge any other party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries Subsidiary is a party or by or to which it the Company, its Subsidiary or any of their respective properties or assets is bound that are 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 filed as an exhibit to a Target SEC Report or to be disclosed listed in Section 3.01(bb) of the Target Company Disclosure Schedule (any such agreementcollectively, contract or commitment, a the "Target ContractCompany 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 a manner as would permit 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 cancel any Company Material Contract is in violation of or terminate 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 Target a violation of or default under) any Company Material Contract, or which in each case would permit any other party reasonably be expected to seek damages or other remedies, which cancellation, termination, damages or other remedies would materially impair the benefits expected to be reasonably likely to have a Target Material Adverse Effectderived therefrom.

Agreements, Contracts and Commitments. As of Except as set forth in the date of ------------------------------------- this AgreementCompany Schedules, neither Target the Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: : (ai) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of Targetthe Company's Board of Directors, other than those that are terminable by Target the Company or any of its Subsidiaries subsidiaries on no more than 30 thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Targetthe Company's or any of its Subsidiariessubsidiaries' ability to terminate employees at will; ; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan, stock purchase plan or restricted stock purchase agreement, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (iii) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between the Company or guarantee might reasonably result in a Target Material Adverse Effect; any of its subsidiaries and any of its officers or directors; (civ) any agreement, contract or commitment containing any covenant limiting in any material respect prohibiting or materially impairing conduct of the right of Target business by the Company or any of its Subsidiaries subsidiaries (as currently conducted or as presently proposed to engage in be conducted by the Company or its subsidiaries) or granting any line of business or to compete with any personexclusive distribution rights; or (dv) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or (vi) any material joint marketing or development agreement. Neither Target the Company nor any of its Subsidiariessubsidiaries, nor to Targetthe Company's knowledge any other party to a Target Company Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target the Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described in the Target Disclosure Schedule clauses (i) through (vi) above (any such agreement, contract or commitment, as well as any agreement, contract or commitment that is an exhibit to any Company SEC Report, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse EffectEffect on the Company.

Agreements, Contracts and Commitments. As Except as otherwise set forth ------------------------------------- in Part 2.16 of the date of ------------------------------------- this AgreementCompany Disclosure Letter, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit TargetCompany's or any of its Subsidiariessubsidiaries' ability to terminate employees at will, or any consulting agreement; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any agreement of indemnification entered into in connection with the sale or license benefits of software products in which will be calculated on the ordinary course basis of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectany of the transactions contemplated by this Agreement; (c) any agreement of indemnification, any guaranty or any instrument evidencing indebtedness for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, or otherwise; (d) any agreement, contract obligation or commitment containing any covenant limiting in any material respect the right of Target covenants purporting to limit or which effectively limit Company's or any of its Subsidiaries subsidiaries' freedom to engage compete in any line of business or to compete with in any person; orgeographic area or which would so limit Company or Surviving Corporation or any of its subsidiaries or any employees of any thereof after the Effective Time or granting any exclusive distribution or other exclusive rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any licensing, distribution, sponsorship, advertising, merchant program or other similar agreement to which Company or one of its subsidiaries is a party which (i) may not be canceled by Company or its subsidiaries, as the case may be, without penalty upon notice of 30 days or less, and (ii) which provides for payments by or to Company or its subsidiaries in an amount in excess of $100,000 over the term of the agreement or which is (or could reasonably be expected to become) material to Company; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology; or (h) any other agreement, contract or commitment currently in effect that is material to Company's business as presently conducted and proposed to be conducted. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Company Disclosure Schedule Letter pursuant to clauses (a) through (h) above or pursuant to Section 2.11 hereof or are required to be filed with any Company SEC Report (any such agreement, contract or commitment, a "Target Company Contract") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely (for any or all of such breaches, violations or defaults, in the aggregate). The agreements set forth in Part 2.16(i) of the Company Disclosure Letter have, to have a Target Material Adverse EffectCompany's knowledge, been executed by each party thereto in the form provided to Parent.

Agreements, Contracts and Commitments. As of (a) Except as would not be material to the date of ------------------------------------- this AgreementHDD Business, neither Target Parent nor any of its Subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Target's the Board of DirectorsDirectors of Parent, other than those that are terminable by Target Parent or any of its Subsidiaries on no more than 30 days thirty (30) days' notice without liability Liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willParent; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (iii) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products or services in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (civ) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Parent or any of its Subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (dv) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Parent or any of its Subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's its Subsidiaries. ; or (vi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit. (b) Neither Target Parent nor any of its Subsidiaries, nor to Target's the knowledge of Parent any other party to a Target Parent Contract (as defined below), is in breach, violation or default under, and neither Target Parent nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Parent or any of its Subsidiaries is a party or by which it Parent or any of its Subsidiaries is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule Parent Schedules pursuant to this Agreement (any such agreementagreements, contract contracts or commitment, a commitments are "Target ContractParent Contracts") in such a manner as would permit any other party to cancel or terminate any such Target Parent Contract, or would permit any other party to seek material damages or other remediesmaterial remedies (for any of such breaches, which cancellationviolations or defaults, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectall of them in the aggregate).

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Pathlore nor any of its Subsidiaries is is, as of the date hereof, a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Target's Board of Directorsthe Pathlore Board, other than those that are terminable by Target Pathlore or any of its Subsidiaries on no more than 30 days thirty (30) days’ notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willPathlore; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might that would not reasonably result in be expected to have a Target Material Adverse EffectEffect on Pathlore or any guaranty of the obligations of a Subsidiary of Pathlore; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Pathlore or any of its Subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Pathlore or any of its Subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Pathlore has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Pathlore’s Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Pathlore or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Pathlore or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Pathlore or any of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Pathlore Product or any agreement, contract or commitment currently in force to sell or distribute any Pathlore Product, except agreements with distributors or sales representatives in the ordinary course of business and substantially in the form previously provided to SumTotal; (h) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (i) any settlement agreement entered into within three (3) years prior to the date of this Agreement with respect to which Pathlore has contingent obligations of a material nature; (j) any license, contract or commitment pursuant to which any Person is authorized to use any Pathlore Intellectual Property (other than NDAs and non-exclusive end-user agreements entered into in the ordinary course of business); (k) any license, contract or commitment pursuant to which Pathlore or any Subsidiary is authorized to use any Intellectual Property of a third party (other than NDAs and commercially available shrink wrap agreements entered into in the ordinary course of business); or (l) any other agreement, contract or commitment that, either individually or taken together with all other contracts with the same party, (i) has in the 12 months preceding December 31, 2004 resulted in payments being made by Pathlore in excess of $50,000 (excluding payroll) or revenue booked by Pathlore in excess of $500,000 or (ii) will, if fulfilled in accordance with its terms, result in payments being made by Pathlore after December 31, 2004 in excess of $250,000 (excluding payroll) or revenue which will be booked by Pathlore in excess of $500,000. Neither Target Pathlore nor any of its Subsidiaries, nor to Target's knowledge Pathlore’s Knowledge any other party to a Target Contract (as defined below)Pathlore Contract, is in breach, violation or default under, and neither Target Pathlore nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Pathlore or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule Pathlore Schedules (any such agreement, contract or commitment, a "Target “Pathlore Contract"”) in such a manner as would permit any other party to cancel or terminate any such Target Pathlore Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of Except as set forth in the date of ------------------------------------- this AgreementCompany Schedules, neither Target the Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of Targetthe Company's Board of Directors, other than those that are terminable by Target the Company or any of its Subsidiaries subsidiaries on no more than 30 thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Targetthe Company's or any of its Subsidiariessubsidiaries' ability to terminate employees at willwill and except for potential liabilities for future actions by the Company to the extent covered by the WARN Act; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan, stock purchase plan or restricted stock purchase agreement, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between the Company or guarantee might reasonably result in a Target Material Adverse Effectany of its subsidiaries and any of its officers or directors; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target the Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target of a material portion of the assets of the Company and its subsidiaries or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or (f) any material joint marketing or development agreement. Neither Target the Company nor any of its Subsidiariessubsidiaries, nor to Targetthe Company's knowledge any other party to a Target Company Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target the Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described in the Target Disclosure Schedule clauses (a) through (f) above (any such agreement, contract or commitment, as well as any agreement, contract or commitment that is an exhibit to any Company SEC Report, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effect.would

Agreements, Contracts and Commitments. As Except as set forth in Schedule 2.17, as of the date of ------------------------------------- this Agreementhereof, neither Target nor any DSNC is not a party to, is not bound by, and none of its Subsidiaries is a party to or is bound byproperties are subject to: (a) any employment or consulting agreement, contract or commitment with any officer officer, employee, consultant or member of TargetDSNC's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries DSNC on no more than 30 thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit TargetDSNC's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, or pursuant to which any guaranty other than amounts may become payable (whether currently or in the future) to current or former employees, consultants, officers and directors of DSNC by the occurrence of any of the transactions contemplated by this Agreement, or the value of any of the benefits of which will be calculated on the basis of or in connection with any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between DSNC and any of its officers or guarantee might reasonably result in a Target Material Adverse Effectdirectors; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target or any of its Subsidiaries DSNC to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target nor enterprise; (f) any of its Subsidiaries, nor to Target's knowledge joint marketing or development agreement currently in force; (g) any other party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitmentcommitment currently in force to provide source code to any third party for any product or technology, a "Target Contract"except for (i) any 18 24 agreement, contract or commitment pursuant to which source code is provided for maintenance of the source code or for development of modifications thereto only, and not for distribution of source or object code to third parties and (ii) any source code escrow agreement entered into in such a manner as would permit the ordinary course of business that contains provisions relating to the release of source code if DSNC ceases to do business or fails to provide appropriate maintenance; (h) any other agreement, contract or commitment currently in force to license any third party to cancel manufacture or terminate reproduce any such Target ContractDSNC product; (i) any continuing contract for the future purchase, sale or manufacture of products, material, supplies, equipment or services requiring payment to or from DSNC in an amount in excess of $25,000 per annum which is not terminable on 30 days' or less notice without cost or other liability at or at any time after the Effective Time or in which DSNC has granted or received manufacturing rights, most favored nation pricing provisions relating to any product, group of products or territory; (j) any contract providing for the development of software (other than contracts with consultants) for, or would permit license of software to, DSNC, which software is used or incorporated in any other party to seek damages DSNC Product (as defined in Section 2.26); (k) any indenture, mortgage, promissory note, loan agreement, guarantee or other remediesagreement or commitment for the borrowing of money, which cancellationfor a line of credit or for a leasing transaction of a type required to be capitalized in accordance with Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board; or (l) any written agreement regarding intercompany loans, terminationrevenue or cost sharing, damages ownership or other remedies would be reasonably likely to have a Target Material Adverse Effectlicense of DSNC IP Rights, intercompany royalties or dividends or similar matters.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreementhereof, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligationobligation to Company, except to the extent general principles (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of wrongful termination law may limit Target's Company or any of its Subsidiaries' ability subsidiaries to terminate employees at willmake any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification entered into in connection with the sale of officers, directors or license employees of software products in the ordinary course Company or any guaranty of business where such agreement third party indebtedness or guarantee might reasonably result in a Target Material Adverse Effectof obligations of officers, directors, employees or agents of Company; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business in any geographic area or to compete with any person; orperson or granting to any person any interest in Company's distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiaries. Neither Target nor subsidiaries; (f) any of its Subsidiariesagreement, nor contract or commitment containing exclusivity provisions pursuant to Target's knowledge which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) any other party to a Target Contract (as defined below)mortgages, is in breachindentures, violation guarantees, loans or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the credit agreements, contracts security agreements or commitments other agreements or instruments relating to which Target the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its Subsidiaries is a party subsidiaries (whether measured by registrations, click-throughs or purchases by which it is bound that are required to be filed as an exhibit to a Target SEC Report such users) or to be disclosed in the Target Disclosure Schedule (ii) revenues generated by purchases on any such agreement, contract website; or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effect.(

Agreements, Contracts and Commitments. As of Except as otherwise set forth in the date of ------------------------------------- this AgreementLaunch Disclosure Schedules, neither Target Launch nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer employee or member of TargetLaunch's Board of Directors, other than those that are terminable by Target Launch or any of its Subsidiaries subsidiaries on no more than 30 days days' notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit TargetLaunch's or any of its Subsidiariessubsidiaries' ability to terminate employees at will, or any consulting agreement; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification entered into in connection with the sale or license of software products in outside the ordinary course of Launch's business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectany guaranty; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Launch or any of its Subsidiaries subsidiaries or a Joint Venture to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Launch or any of its Subsidiaries subsidiaries or a Joint Venture after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Launch has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetLaunch's Subsidiariessubsidiaries or a Joint Venture; (f) any licensing, distribution, sponsorship, advertising, merchant program, encoding services, hosting or other similar agreement to which Launch or one of its subsidiaries or a Joint Venture is a party which may not be canceled by Launch or its subsidiaries or a Joint Venture, as the case may be, without penalty in excess of $10,000 upon notice of 30 days or less or which provides for payments by Launch or its subsidiaries or a Joint Venture in an amount in excess of $10,000 over the term of the agreement or to Launch or its subsidiaries or a Joint Venture in an amount in excess of $100,000 over the term of the agreement; (g) any agreement, contract or commitment currently in force to license or provide source code to any third party for any product or technology; or (h) any other agreement, contract or commitment currently in effect that is material to Launch's business as presently conducted. Neither Target Launch nor any of its Subsidiariessubsidiaries, nor to TargetLaunch's knowledge any Joint Venture or any other party to a Target Launch Contract (as defined below), is in breach, violation or default under, and neither Target Launch nor any of its Subsidiaries subsidiaries nor, to the knowledge of Launch, any Joint Venture has received written notice (except for notices delivered prior or to January 1its knowledge, 1995 regarding matters which were subsequently resolved or are no longer pendingany other form of notice) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Launch or any of its Subsidiaries subsidiaries or a Joint Venture is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Launch Disclosure Schedule Schedules pursuant to clauses (a) through (h) above or pursuant to Section 3.9 hereof (any such agreement, contract or commitment, a "Target Launch Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, Launch Contract or would permit any other party to seek damages or other remedies, remedies the effect of which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse EffectEffect on Launch.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer officer, director, Company employee currently earning an annual salary in excess of (U.S.) $55,000 or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, shares appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any material agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (h) any material agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other written agreements or instruments relating to the borrowing of money or extension of credit; (j) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that has a value of (U.S.) $22,000 or more individually. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as set forth in Section 2.18 of the date of ------------------------------------- this AgreementCompany Disclosure Letter, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer officer, director, Company employee or member of TargetCompany's Board of Directors, or any service, operating or management agreement or arrangement with respect to any of its properties (whether leased or owned) other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products or services in or the licensing of real property in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any Intellectual Property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (h) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit other than trade payables incurred in the ordinary course of business; (j) any material settlement agreement under which the Company has ongoing obligations; or (k) any other agreement, contract or commitment involving in excess of $100,000 being paid by or to Company over the term thereof. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in material breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Company Disclosure Schedule Letter (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely (for any or all of such breaches, violations or defaults, in the aggregate). Company has made available to have a Target Material Adverse EffectParent true and correct copies of any contracts between Company and its top ten customers.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Target's Docent’s Board of Directors, other than those that are terminable by Target Docent or any of its Subsidiaries on no more than 30 days thirty (30) days’ notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willDocent; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might business, that would not reasonably result in be expected to have a Target Material Adverse EffectEffect on Docent, or any guaranty of the obligations of a Subsidiary of Docent; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Docent or any of its Subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Docent or any of its Subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Docent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Docent’s Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Docent or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Docent or any of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Docent or any of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Docent and its Subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Docent product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Docent products, service or technology except agreements with distributors or sales representative in the normal course of business and substantially in the form previously provided to Click2learn; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within three (3) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that, either individually or taken together with all other contracts with the same party, (i) has in the past 12 months resulted in payments being made by Docent or revenue to Docent in excess of $1,000,000 or (ii) will, if fulfilled in accordance with its terms, result in payments being made by Docent or revenue to Docent in excess of $1,000,000 in the next 12 months. Neither Target Docent nor any of its Subsidiaries, nor to Target's Docent’s knowledge any other party to a Target Docent Contract (as defined below), is in breach, violation or default under, and neither Target Docent nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Docent or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule Docent Schedules (any such agreement, contract or commitment, a "Target “Docent Contract"”) in such a manner as would permit any other party to cancel or terminate any such Target Docent Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

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

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Target's Click2learn’s Board of Directors, other than those that are terminable by Target Click2learn or any of its Subsidiaries on no more than 30 days thirty (30) days’ notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willClick2learn; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might business, that would not reasonably result in be expected to have a Target Material Adverse EffectEffect on Click2learn, or any guaranty of the obligations of a Subsidiary of Click2learn; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Click2learn or any of its Subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Click2learn or any of its Subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Click2learn has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Click2learn’s Subsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Click2learn or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Click2learn or any of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Click2learn or any of its Subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Click2learn and its Subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Click2learn product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Click2learn products, service or technology except agreements with distributors or sales representative in the normal course of business and substantially in the form previously provided to Docent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within three (3) years prior to the date of this Agreement with respect to which Click2learn has contingent obligations of a material nature; or (k) any other agreement, contract or commitment that, either individually or taken together with all other contracts with the same party, (i) has in the past 12 months resulted in payments being made by Click2learn or revenue to Click2learn in excess of $1,000,000 or (ii) will, if fulfilled in accordance with its terms, result in payments being made by Click2learn or revenue to Click2learn in excess of $1,000,000 in the next 12 months. Neither Target Click2learn nor any of its Subsidiaries, nor to Target's Click2learn’s knowledge any other party to a Target Click2learn Contract (as defined below), is in breach, violation or default under, and neither Target Click2learn nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Click2learn or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule Click2learn Schedules (any such agreement, contract or commitment, a "Target “Click2learn Contract"”) in such a manner as would permit any other party to cancel or terminate any such Target Click2learn Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this AgreementExcept as described in Schedule 2.17, neither Target Corporation nor any Subsidiary of its Subsidiaries Target Corporation is a party to or is bound by: by (ai) any employment written or consulting agreementoral contract, contract agreement or commitment with any officer which involves or member may involve aggregate future payments (whether in payment of Target's Board a debt, as a result of Directorsa guarantee or indemnification, for goods or services or otherwise) by or to Target Corporation of $100,000 or more and which is not, by its terms, terminable by Target Corporation or one or more of its Subsidiaries without penalty or payment on 30 days notice or less, other than those that are terminable purchase orders for the purchase or sale of goods and/or services entered into by Target or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products Corporation in the ordinary course of business where such agreement business, or guarantee might reasonably result in a Target Material Adverse Effect; (cii) any employment agreement, contract or commitment containing any covenant limiting in any material respect the right of Target or any of its Subsidiaries to engage in any line of business or to compete with any person; or (d) any non-competition agreement, contract any loan or commitment currently in force relating to the disposition credit agreement, security agreement, indenture, mortgage, pledge or acquisition by Target other instrument evidencing indebtedness (other than equipment purchases or any of its Subsidiaries after the date of this Agreement of any material assets not lease agreements entered into in the ordinary course of business business), or pursuant to which Target has any ownership interest in any corporationsales representative, alliance, partnership, joint venture venture, joint operating or other business enterprise other than Target's Subsidiariessimilar agreement. Neither The Target nor any Corporation has delivered to Acquiring Corporation a correct and complete copy of each written agreement listed in Schedule 2.17 (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 2.17. With respect to each such agreement: (A) the agreement is Enforceable against Target Corporation or its Subsidiaries, as the case may be; (B) to the Knowledge of Target Corporation, the agreement will continue to be Enforceable against the other parties thereto following the consummation of the transactions contemplated hereby; (C) neither Target Corporation nor to Target's knowledge any other party to a Subsidiary of Target Contract (as defined below), Corporation is in breachbreach under any material provision of or is not in default in any material respect under the terms of, violation any such contract, agreement or commitment described in Schedule 2.17, and to the Knowledge of Target Corporation, no event has occurred and no condition exists which, after notice or lapse of time or both, would constitute such a material breach or default underby Target Corporation or its Subsidiaries, and neither or permit termination, modification, or acceleration, under any such contract, agreement or commitment; (D) to the Knowledge of Target nor any Corporation, no third party is in breach of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of in default under the material terms or conditions of any of the agreementssuch contract, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract agreement or commitment, a "or permit termination, modification, or acceleration, under the agreement; and (E) to the Knowledge of Target Contract") in such a manner as would permit Corporation, no party has repudiated any other party to cancel or terminate provision of any such Target Contractcontract, agreement or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectcommitment.

Agreements, Contracts and Commitments. (a) As of the date hereof, except as set forth under Schedule 3.13(a) of ------------------------------------- this Agreementthe Company Disclosure Schedule, neither Target nor any of its Subsidiaries Company is a not party to or is nor bound byby any: (ai) any employment or consulting agreement, contract or commitment “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with any officer or member of Target's Board of Directors, other than those that are terminable by Target respect to Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with Company Annual Report on no more than 30 days notice without liability Form 10-K for the year ended December 31, 2024, or financial obligation, except any Company SEC Documents filed after the date of filing of such Form 10-K until the date hereof; (ii) Contract (A) relating to the extent general principles of wrongful termination law may limit Target's disposition or acquisition by Company or any of its Subsidiaries' ability to terminate employees at will; Subsidiaries of a material amount of assets (b1) any agreement after the date of indemnification or any guaranty this Agreement other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement consistent with past practice or guarantee might (2) prior to the date hereof, which contains any material ongoing obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect that are reasonably likely, under any of them, to result in a Target Material Adverse Effect; claims in excess of $100,000 or (cB) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target pursuant to which Company or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than Company’s Subsidiaries; (iii) collective bargaining agreement or Contract with any labor union, trade organization or other employee representative body; (iv) Contract establishing any joint ventures, partnerships or similar arrangements; (v) Contract (A) prohibiting or materially limiting the right of Company to engage compete in any line of business or to compete conduct business with any person; orPerson or in any geographical area, (B) obligating Company to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party or (C) under which any Person has been granted the right to manufacture, sell, market or distribute any product of Company on an exclusive basis to any Person or group of Persons or in any geographical area but excluding any distribution, sales representative, sales agent or similar agreement under which Company has granted a Person an exclusive geographical area and under which Company paid commissions less than $100,000 to such Person in 2024, or from whom Company received less than $100,000 from the sale of product to said Person in 2024; (dvi) any agreement, contract or commitment currently in force relating Contract pursuant to the disposition or acquisition by Target which Company or any of its Subsidiaries after the date of this Agreement of (i) licenses any material assets not Intellectual Property from another Person that is used by Company or one of its Subsidiaries in the conduct of its business as currently conducted that could require payment by Company or any Subsidiary of royalties or license fees exceeding $100,000 in any twelve (12) month period or (ii) licenses Company Intellectual Property to another Person, except licenses provided to direct customers in the ordinary course of business; (vii) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit of $100,000 or more, other than (A) accounts receivables and payables and (B) loans to direct or indirect wholly-owned subsidiaries, in each case in the ordinary course of business consistent with past practice; (viii) Contract providing for any guaranty by Company or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target nor any of its Subsidiaries, nor to Target's knowledge any other Subsidiaries of third-party to a Target Contract obligations (as defined below), is in breach, violation under which Company or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any continuing obligations as of the material terms date hereof) of $100,000 or conditions of more, other than any of the agreements, contracts or commitments to which Target guaranty by Company or any of its Subsidiaries is Subsidiaries’ obligations; (ix) Contract between Company, on the one hand, and any Affiliate of Company (other than a Subsidiary of Company), on the other hand (other than a Company Plan); (x) Contract containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than Company or by its Subsidiaries; (xi) Contract under which it Company and Company’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $100,000 during the current or a subsequent fiscal year; (xii) Employment agreement that cannot be terminated within sixty (60) days without a severance payment obligation; (xiii) Change of control bonus or other bonus agreement that will trigger a payment obligation as a result of closing this Transaction; or (xiv) Contract to enter into any of the foregoing. (b) The Company has been given access to a true and correct copy of all written Company Material Contracts, together with all material amendments, waivers or other changes thereto. There are no oral Company Material Contracts. (c) Except as disclosed under Section 3.13(c) of the Company Disclosure Schedule, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Company, (i) Company is bound that are not in default under any Contract listed, or required to be filed as an exhibit to a Target SEC Report or to be disclosed listed, in Section 3.13(a) of the Target Company Disclosure Schedule (any such agreement, contract or commitmenteach, a "Target “Company Material Contract"” and, collectively, the “Company Material Contracts”), and, (ii) in such a manner to Company’s Knowledge, as would permit any of the date hereof, the other party to cancel or terminate each of the Company Material Contracts is not in default thereunder. Except as disclosed under Section 3.13(c) of the Company Disclosure Schedule, each Company Material Contract is legal and in full force and effect and is valid, binding and enforceable against Company and, to Company’s Knowledge, each other party thereto. As of the date hereof, no party to any such Target ContractCompany Material Contract has given any written notice, or would permit to the Knowledge of Company, any other party notice (whether or not written) of termination or cancellation of any Company Material Contract or that it intends to seek damages to terminate or other remedies, which cancellation, termination, damages cancel any Company Material Contract (whether as a result of the transactions contemplated hereby or other remedies would be reasonably likely to have a Target Material Adverse Effectotherwise).

Agreements, Contracts and Commitments. As of Except as set forth on the date of ------------------------------------- this AgreementCompany Disclosure Schedule, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer executive officer, director or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 thirty days notice without and which do so with no express (whether by contract or by policy) liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan (except for those described in Section 2.3 of the Company Disclosure Schedule), any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty currently in force other than any agreement of indemnification entered into in connection with the sale or license or distribution or marketing of software products or services in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orbusiness; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiaries. subsidiaries; Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Company Disclosure Schedule pursuant to this Section 2.19 (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of Except as set forth in the date of ------------------------------------- this AgreementCompany Schedules, neither Target the Company nor any of its Subsidiaries subsidiaries has, nor is it a party to or nor is it bound by: (a) any collective bargaining agreements, (b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements, (c) any employment or consulting agreement, contract or commitment with any officer or member of Target's Board of Directorsdirector level employee, other than those that are not terminable by Target or any of its Subsidiaries the Company on no more than 30 thirty (30) days notice without liability or financial obligationliability, except to the extent general principles of wrongful termination law may limit Targetthe Company's or any of its Subsidiaries' ability to terminate employees at will;, (bd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, (e) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business where other than such agreement agreements or guarantee might reasonably result in a Target Material Adverse Effect;guarantees between the Company and any of its subsidiaries, officers or directors, (cf) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target or any of its Subsidiaries the Company to engage in any line of business or to compete with any person; or, (dg) any agreement, contract or commitment currently relating to capital expenditures and involving future obligations in force excess of $200,000, (h) any agreement, contract or commitment relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise enterprise, (i) any mortgages, indentures, loans or credit agreements, security agreements or other than Targetagreements or instruments relating to the borrowing of money or extension of credit, (j) any joint marketing or development agreement (excluding agreements with resellers, value added resellers or independent software vendors entered into in the ordinary course of business that do not permit such resellers or vendors to modify the Company's Subsidiaries. Neither Target nor software products), (k) any distribution agreement (identifying any that contain exclusivity provisions), (l) any lease of its Subsidiariesreal property involving the payment by the Company of $250,000 per year or more in any individual case, (m) any agreement or commitment with any affiliate of the Company, nor to Target's knowledge or (n) any other party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract"commitment (including personal property leases) which involves payment by the Company of $250,000 or more and is not cancelable without penalty within thirty (30) days or (other than agreements for the provision by the Company of services entered into in such a manner as would permit the ordinary course of its business) that involves payment to the Company of $250,000 or more in any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectindividual case.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- Except as contemplated by this AgreementAgreement or as set forth on Schedule 3.11, neither Target Almo nor any of its Subsidiaries the Sellers currently has or is a party to, or bound by with respect to any Acquired Asset or is bound by:Key Employee (as defined in Section 3.4(i) hereof): (a) any employment or consulting agreement, contract or commitment with any officer or member of Target's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willcollective bargaining agreements; (b) any agreement of indemnification agreements or arrangements that contain any guaranty other than any agreement of indemnification entered into in connection with the sale severance pay or license of software products in the ordinary course of business where such agreement post-employment liabilities or guarantee might reasonably result in a Target Material Adverse Effectobligations; (c) any stock option, stock purchase, stock appreciation, bonus, deferred compensation, pension, severance, profit sharing or retirement plans, or any other employee benefit plans or arrangements; (d) any agreement, contract contract, or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise except in the ordinary course of business; (e) any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement; (f) any agreement (or group of related agreements) for the lease of personal property to or from any person or entity having a value individually in excess of $10,000; (g) any agreement of indemnification or guaranty; (h) any agreement entered otherwise than in the ordinary course of business; (i) to Almo and the Sellers' knowledge, any agreement that is likely to result in a loss in excess of $25,000 on completion of performance; (j) any agreement (or group of related agreements) containing any covenant limiting in any material respect the right freedom of Target Almo or any of its Subsidiaries the Sellers to engage in any line of business or to compete with any person; orperson or entity that could reasonably be expected to impair or encumber the Acquired Assets (including, without limitation, any restrictions on the marketing, license, and distribution of the Seller Registered Intellectual Property); (dk) any agreement, contract agreement (or commitment currently in force group of related agreements) relating to capital expenditures and involving future payments in excess of $15,000; (l) any agreement (or group of related agreements) under which payment in excess of $1,000 has already been received by Almo or the disposition Sellers (whether in whole or acquisition by Target or any in part) but which requires the performance of its Subsidiaries services after the date of this Agreement of Closing Date, except for credit balances included in Schedule 1.2(b); (m) any material assets not fidelity or surety bond or completion bond; (n) any agreement pursuant to which Almo or the Sellers have advanced or loaned any amount to any director, officer, employee, or consultant other than business travel advances in the ordinary course of business business; (o) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Almo or the Sellers or extension of credit to Almo or the Sellers exclusive of routine trade payables, involving obligations in excess of $5,000 or under which Almo or the Sellers have imposed any lien on any of the Acquired Assets; (p) any purchase order or contract for the purchase of materials (excluding capital expenditures) involving $15,000 or more; (q) any agreement concerning confidentiality, except in the ordinary course; (r) any construction contracts; (s) any distribution, joint marketing, development, or partnership or joint venture agreement; (t) any agreement pursuant to which Target Almo or the Sellers has granted, or may grant in the future, to any ownership interest in any corporation, partnership, joint venture party a source-code license or option or other business enterprise other than Target's Subsidiaries. Neither Target nor any of its Subsidiaries, nor right to Target's knowledge use or acquire source-code; or (u) any other party to a Target Contract agreement, contract, lease, or license (as defined below)or series of related agreements, is in breachcontracts, violation or default underleases, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pendinglicenses) that it has breached, violated involves payment of $10,000 or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectmore.

Agreements, Contracts and Commitments. As of Except as set forth n the date of ------------------------------------- this Agreementattached Schedule A, neither Target the Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any Any employment or consulting agreement, contract or commitment with any officer or director level employee or member of Targetthe Company's Board of Directors, other than those that are terminable by Target the Company or any of its Subsidiaries subsidiaries on no more than 30 thirty (30) days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) Any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) Any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between the Company or guarantee might reasonably result in a Target Material Adverse Effectany of its subsidiaries and any of its officers or directors; (cd) any Any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target the Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any Any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or (f) Any material joint marketing or development agreement. Neither Target the Company nor any of its Subsidiariessubsidiaries, nor to Targetthe Company's knowledge any other party to a Target Company Contract (as defined belowherein), is in breachhas breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target the Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described in the Target Disclosure Schedule clauses (a) through (f) above (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remediesdamages, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectbe material to the Company.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, except as set forth in Section 2.17(g) or Section 2.18 of the Company Schedule, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any written employment or consulting agreement, contract or commitment with any officer or employee of Company currently earning an annual salary in excess of $150,000 or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without material liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale of products or license of software products technology in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (c) any material agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (e) any dealer, distributor, joint marketing or development agreement under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without material penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without material penalty upon notice of ninety (90) days or less; (f) any agreement, contract or commitment to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment to sell or distribute any Company products, service or technology except agreements with distributors or sales representatives in the normal course of business cancelable without material penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Company or extension of credit (other than customer accounts receivable owing to Company created in the ordinary course of business and payable or dischargeable in accordance with customary trade terms); (h) any material settlement agreement under which Company has ongoing obligations; (i) any other agreement, contract or commitment that calls for the payment or receipt by Company of $3,000,000 or more; or (j) any other agreement, contract or commitment that is of the nature required to be filed by Company as an exhibit to a Report on Form 10-K under the Exchange Act. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in material breach, violation or default under, and neither Target under a Company Contract. Neither Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) within the last twelve months that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule pursuant to this Section 2.18 (any such agreement, contract or commitment, a "Target Company Contract") " in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreementhereof, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligationobligation to Company, except to the extent general principles (ii) any such agreement, contract or commitment with any employee, consultant, shareholder or other person that will result in any obligation of wrongful termination law may limit Target's Company or any of its Subsidiaries' ability subsidiaries to terminate employees at willmake any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or arrangement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification entered into in connection with the sale of officers, directors or license employees of software products in the ordinary course Company or any guaranty of business where such agreement third party indebtedness or guarantee might reasonably result in a Target Material Adverse Effectof obligations of officers, directors, employees or agents of Company; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orin any (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 20,000 square feet; (j) any agreement, contract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, click-throughs or purchases by such users) or (ii) revenues generated by purchases on any such website; or (k) any other agreement, contract or commitment that involves remaining obligations of Company of $1,000,000 or more individually. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule Company Schedules (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as set forth in Section 3.16 of the Company Disclosure Schedule, as of the date of ------------------------------------- this Agreementhereof, neither Target the Company nor any of its Subsidiaries is a party to or is bound by: (a) any employment written or oral consulting agreement, contract or commitment with any officer independent contractor or member of Target's Board of Directors, consultant other than those that are terminable by Target the Company or any of its Subsidiaries on no more than 30 days days' notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any written or oral consulting agreement, contract or commitment with any independent contractor or consultant under which any benefits of its Subsidiaries' ability to terminate employees at willwhich are contingent upon the occurrence of a transaction involving the Company of the nature of any of the transactions contemplated by this Agreement; (b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where business; and any commitment of the Company to honor or make any payment under any such agreement or guarantee might reasonably result in a Target Material Adverse Effectindemnification arrangement; (c) any agreement, contract or commitment containing any covenant (i) limiting in any material respect the right of Target the Company or any of its Subsidiaries to engage in any line of business or to compete with any person; orperson or (ii) granting any exclusive distribution rights; (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target the Company or any of its Subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target the Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Targetthe Company's Subsidiaries; (e) any joint marketing or development agreement currently in force under which the Company or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which the Company or any of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company or any of its Subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (f) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology except as a distributor in the normal course of business; or (g) any loan, note, indenture or other instrument evidencing indebtedness in excess of $100,000. Neither Target the Company nor any of its Subsidiaries, nor to Targetthe Company's knowledge any other party to any of the agreements, contracts or commitments to which the Company or any of its Subsidiaries is a Target Contract party or by which any of them are bound that are required to be disclosed in the Company Disclosure Schedule pursuant to Section 3.15 or this Section 3.16 ("Company Contracts") is, as defined below)of the date hereof, is in breach, violation or default underunder (other than as a result of the insolvency of the Company), and any Company Contract, except for breaches, violations or defaults that in the aggregate would not have a Material Adverse Effect. Except as set froth in Section 3.16 of the Company disclosure Schedule, neither Target the Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") Company Contract in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of (a) Neither the date of ------------------------------------- this Agreement, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director, employee or member of Target's the Company’s Board of Directors, other than those Directors (excluding standard employee contracts in foreign countries that are terminable governed by Target or any local law and which contain only standard, ordinary course of its Subsidiaries on no more than 30 days notice without liability or financial obligationbusiness provisions), except to for the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willphantom stock plans described in Section 2.3(a); (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, except as set forth in Section 2.3(a); (iii) any agreement of indemnification, except for standard business indemnification provisions in third-party vendor, customer and service provider contracts, and indemnification agreements with employees and former employees (the standard form of which was previously provided to NBEV) serving as officers and directors of the Company and its foreign subsidiaries, or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (civ) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target the Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights, except for a commitment in connection with a settlement of a lawsuit not to manufacture or sell any mangosteen-based product; (dv) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target the Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target the Company’s subsidiaries; (vi) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less; (vii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Product, service or technology (except for the Tombo and Ba▇▇▇ ▇ontract manufacturing arrangements and other material vendors previously disclosed to NBEV) or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable based on their terms without penalty upon notice of sixty (60) days or less and substantially in the form previously provided to NBEV; (ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, except for the indebtedness that was previously disclosed to NBEV; (x) any material settlement agreement entered into within three (3) years prior to the date of this Agreement, except for a confidential settlement agreement with two former executives as previously disclosed to NBEV; or (xi) any other agreement, contract or commitment that has a value of $100,000 or more in any individual case outside the ordinary course of business. (b) Other than such breaches, violations or defaults as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its Subsidiariessubsidiaries, nor to Target's the Company’s knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target the Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target the Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target “Company Contract"”) in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries ------------------------------------- subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectof Company; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business (other than with respect to limitations on the distribution by Company of certain content and service providers), or to compete with any person; orperson or granting any exclusive distribution rights of Company services; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (i) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or (ii) any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less except for agreements, contracts or commitments with an annual value of less than $100,000; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except those agreements with customers, distributors or sales representatives made in the normal course of business and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that involves annual expenditures or receipts of $2,500,000 or more individually. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule (any such agreement, contract or commitment, a "Target Company Contract") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as otherwise set forth in Section 2.16 of the Company Disclosure Schedule, as of the date of ------------------------------------- this Agreement, neither Target nor any of its Subsidiaries hereof the Company is not a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of Targetthe Company's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries the Company on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Targetthe Company's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in outside the ordinary course of the Company's business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectany guaranty; (c) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target or any of its Subsidiaries the Company to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries the Company after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target the Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise enterprise; (e) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology; or (f) any other agreement, contract or commitment currently in effect that is expected to represent more than Target10% of the Company's Subsidiariesrevenue for the calendar year 2000 or that requires the Company to make payments of greater than $500,000 per year or more than $1,500,000 in the aggregate. Neither Target nor any of its Subsidiariesthe Company, nor to Targetthe Company's knowledge any other party to a Target Company Contract (as defined below), ) is in breach, violation or default under, and neither Target nor any of its Subsidiaries the Company has not received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries the Company is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Company Disclosure Schedule pursuant to clauses (a) through (f) above or pursuant to Section 2.14 hereof (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, remedies which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Company Material Adverse Effect. The Company Contracts are in full force and effect and the Company has performed all of the material obligations required to be performed by it and is entitled to all accrued benefits under all the Company Contracts.

Agreements, Contracts and Commitments. As Except as set forth in ------------------------------------- Section 3.16 of the Company Disclosure Schedule, as of the date of ------------------------------------- this Agreementhereof, neither Target the Company nor any of its Subsidiaries is a party to or is bound by: (a) any employment written or oral consulting agreement, contract or commitment with any officer independent contractor or member of Target's Board of Directors, consultant other than those that are terminable by Target the Company or any of its Subsidiaries on no more than 30 days days' notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any written or oral consulting agreement, contract or commitment with any independent contractor or consultant under which any benefits of its Subsidiaries' ability to terminate employees at willwhich are contingent upon the occurrence of a transaction involving the Company of the nature of any of the transactions contemplated by this Agreement; (b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where business; and any commitment of the Company to honor or make any payment under any such agreement or guarantee might reasonably result in a Target Material Adverse Effectindemnification arrangement; (c) any agreement, contract or commitment containing any covenant (i) limiting in any material respect the right of Target the Company or any of its Subsidiaries to engage in any line of business or to compete with any person; orperson or (ii) granting any exclusive distribution rights; (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target the Company or any of its Subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target the Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Targetthe Company's Subsidiaries; (e) any joint marketing or development agreement currently in force under which the Company or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which the Company or any of its Subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company or any of its Subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (f) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology except as a distributor in the normal course of business; or (g) any loan, note, indenture or other instrument evidencing indebtedness in excess of $100,000. Neither Target the Company nor any of its Subsidiaries, nor to Targetthe Company's knowledge any other party to any of the agreements, contracts or commitments to which the Company or any of its Subsidiaries is a Target Contract party or by which any of them are bound that are required to be disclosed in the Company Disclosure Schedule pursuant to Section 3.15 or this Section 3.16 ("Company Contracts") is, as defined below)of ----------------- the date hereof, is in breach, violation or default underunder (other than as a result of the insolvency of the Company), and any Company Contract, except for breaches, violations or defaults that in the aggregate would not have a Material Adverse Effect. Except as set froth in Section 3.16 of the Company disclosure Schedule, neither Target the Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") Company Contract in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of Neither the date of ------------------------------------- this Agreement, neither Target Parent nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of Target's the Parent’s Board of Directors, other than those that are terminable by Target or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of ay of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between the Parent or guarantee might reasonably result in a Target Material Adverse Effectany of its subsidiaries and any of its officers or directors; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target the parent or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or (f) any material joint marketing or development agreement. Neither Target the Parent nor any of its Subsidiariessubsidiaries, nor to Target's the Parent’s knowledge any other party to a Target Parent Contract (as defined belowherein), is in breachhas breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target the Parent or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described in the Target Disclosure Schedule clauses (a) through (f) above (any such agreement, contract or commitment, commitment is referred to herein as a "Target Contract"“PARENT CONTRACT”) in such a manner as would permit any other party to cancel or terminate any such Target Parent Contract, or would permit any other party to seek damages or other remediesdamages, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectbe material to the Parent.

Agreements, Contracts and Commitments. As (a) Except as set forth in SECTION 2.20(a) of the date of ------------------------------------- this AgreementCompany Schedule, neither Target the Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer officer, director, the Company employee currently earning an annual salary in excess of $100,000 or member of Targetthe Company's Board of Directors, other than those that are terminable by Target the Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) calendar days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (bii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (iii) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (civ) any material agreement, contract or commitment containing any covenant limiting in any material respect the right of Target the Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (dv) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target the Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Targetthe Company's Subsidiaries. subsidiaries; (vi) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) calendar days or less, or any material agreement pursuant to which the Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) calendar days or less; (vii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a whole; (viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) calendar days or less and substantially in the form previously provided to Parent; (ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (x) to the knowledge of the Company, any material settlement agreement entered into within five (5) years prior to the date of this Agreement which has not yet been fully performed or which contains provisions that restrict or otherwise govern the conduct of business by the Company or any of its subsidiaries; or (xi) any other agreement, contract or commitment that has a value of $100,000 or more individually or annually. (b) Neither Target the Company nor any of its Subsidiariessubsidiaries, nor to Targetthe Company's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target the Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target the Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely (for any or all of such breaches, violations or defaults, in the aggregate). The Company has made available to Parent true and correct copies of any contracts the Company may have a Target Material Adverse Effectwith its top ten customers.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target nor any of its Subsidiaries is a party to or is bound by: (a) Seller has not breached, or received in writing any employment claim or consulting agreement, contract or commitment with any officer or member of Target's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effect; (c) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target or any of its Subsidiaries to engage in any line of business or to compete with any person; or (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target nor any of its Subsidiaries, nor to Target's knowledge any other party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) threat that it has breached, violated or defaulted under, any of the material terms or and conditions of any of the agreementsagreement, contracts contract, or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are commitment required to be filed as an exhibit to a Target the Seller SEC Report or to be disclosed in the Target Disclosure Schedule Reports (any such agreement, contract or commitment, a "Target ContractSeller Material Contracts") in such a manner as would permit any other party to cancel or terminate any such Target Contract, the same or would permit any other party to seek material damages from Seller under any Seller Material Contract. Each Seller Material Contract that has not expired or been terminated is in full force and effect and is not subject to any material default thereunder of which Seller is aware by any party obligated to Seller pursuant to Seller Material Contracts. (b) Except as set forth in Seller SEC Reports filed prior to the date of this Agreement or as provided for in this Agreement, neither Seller nor any of its Subsidiaries is a party to any oral or written (i) consulting agreement providing for annual payments by Seller or any of its Subsidiaries in excess of $100,000, (ii) agreement with any executive officer or other remedieskey employee of Seller or any of its Subsidiaries the benefits of which are contingent or vest, or the terms of which cancellationare materially altered, terminationupon the occurrence of a transaction involving Seller or any of its Subsidiaries of the nature contemplated by this Agreement, damages (iii) agreement with respect to any executive officer or other remedies key employee of Seller or any of its Subsidiaries providing any term of employment or compensation guarantee, (iv) agreement or plan, including any stock option, stock appreciation right, restricted stock or stock purchase plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, (v) agreement that would restrict Seller's or any Subsidiary's ability to compete in any business in any location, (vi) agreements concerning a partnership or joint venture, (vii) loan agreements, promissory notes, security agreements, deeds of trust and other agreements relating to indebtedness for borrowed money or deferred purchase price of property (other than trade payables arising in the ordinary course of business), (viii) any agreement relating to business acquisitions or dispositions not yet consummated, including any separate Tax or indemnification agreements, and (ix) any other agreement that would be reasonably likely required to have be filed as an exhibit to an Annual Report on Form 10-K of Seller if Seller were to file such a Target report on the date of this Agreement (assuming for this purpose that the fiscal year covered thereby ended on the date of this Agreement). (c) All Seller Material Adverse EffectContracts and such other agreements required to be disclosed in Section 3.10 of the Seller Disclosure Schedule are valid and binding and are in full force and effect and enforceable against Seller or its Subsidiaries in accordance with their respective terms, except as to the effect, if any, of (i) applicable bankruptcy or other similar laws affecting the rights of creditors generally, (ii) rules of law governing specific performance, injunctive relief and other equitable remedies and (iii) to the extent applicable, the enforceability of provisions regarding indemnification in connection with the sale or issuance of securities. Neither Seller nor any of its Subsidiaries is in material violation or breach of or default under, or has received notice of any material violation or breach of or default under, any such Seller Material Contracts or other agreements required to be disclosed in Section 3.10 of the Seller Disclosure Schedule. To the Knowledge of Seller, no other party to a Seller Material Contract or any other agreement required to be disclosed in Section 3.10 of the Seller Disclosure Schedule is in material violation or breach of or default under any such Seller Material Contract or other such agreement, as the case may be.

Agreements, Contracts and Commitments. As (a) Except as filed as an exhibit to any of the date of ------------------------------------- this AgreementCompany SEC Reports, neither Target the Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer director, officer, employee or member of Target's Board of Directorsconsultant, other than those that are terminable at-will by Target the Company or any of its Subsidiaries subsidiaries on no more than 30 days days’ notice and without liability or financial obligationobligation other than accrued wages, except to the extent general principles of wrongful termination law may limit Target's salary or any of its Subsidiaries' ability to terminate employees at willbenefits; (bii) any agreement of indemnification or any guaranty indemnification, other than any agreement indemnification agreements with directors and officers of indemnification entered into in connection with the sale or license of software products in Company and its subsidiaries, outside the ordinary course of the Company’s business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectany guaranty; (ciii) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target the Company or any of its Subsidiaries subsidiaries (i) to engage in any line of business business, (ii) to develop, market or distribute products or services, or (iii) to compete with any person; or, or granting any exclusive distribution rights; (div) any lease for real or personal property in which the amount of payments which the Company or any of its subsidiaries is required to make on an annual basis exceeds $100,000; (v) other than contracts related to any Discontinued Business, any material agreement, contract, policy, license, permit, document, instrument, arrangement or commitment involving annual revenues to the Company or any of its subsidiaries in excess of $100,000 which has not been terminated or performed in its entirety and not renewed and which may be, by its terms, terminated, or which may, by its terms, have any of the obligations of the Company or any of its subsidiaries adjusted, as a result of the execution of this Agreement or the Voting Agreements or the consummation of the Merger, where such right of termination or adjustment would not have arisen or existed but for such execution or consummation; (vi) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target the Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target nor the Company’s subsidiaries; (vii) any sponsorship, advertising, merchant program, hosting or other similar agreement to which the Company or one of its Subsidiaries, nor to Target's knowledge any other party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries subsidiaries is a party which may not be canceled by the Company or its subsidiaries, as the case may be, without penalty in excess of $100,000 upon notice of 30 days or less or which provides for payments by which it or to the Company or its subsidiaries on an annual basis in an amount in excess of $100,000; (viii) any agreement, contract or commitment currently in force to license or provide source code to any third party for any product or technology; or (ix) any agreement, contract or commitment currently in effect that is bound that are material to the Company’s business as presently conducted, including any agreement required to be filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K and all amendments to any agreements included as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2001. (b) Set forth in Section 2.14 of the Company Disclosure Letter is (A) a Target SEC Report list of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness of the Company or any of its subsidiaries in a principal amount in excess of $100,000 is outstanding or may be disclosed incurred and (B) the respective principal amounts currently outstanding thereunder. For purposes of this Section 2.14(b), “indebtedness” shall mean, with respect to any person, without duplication, (A) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (B) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (E) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the Target Disclosure Schedule ordinary course of such person’s business), (F) all capitalized lease obligations of such person, (G) all obligations of others secured by any Lien on property or assets owned or acquired by such agreementperson, contract whether or commitmentnot the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency swap transactions (valued at the termination value thereof), (i) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business), (J) all obligations of such person to purchase securities (or other property) which arises out of or in connection with the sale of the same or substantially similar securities or property, and (K) all guarantees and arrangements having the economic effect of a "Target Contract") in guarantee of such a manner as would permit person of any indebtedness of any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectperson.

Agreements, Contracts and Commitments. As of Except as set forth in the date of ------------------------------------- this AgreementFractal Schedules, neither Target Fractal nor any of its Subsidiaries subsidiaries is a party to or is bound by: : (a) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of TargetFractal's Board of Directors, other than those that are terminable by Target Fractal or any of its Subsidiaries subsidiaries on no more than 30 thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit TargetFractal's or any of its Subsidiariessubsidiaries' ability to terminate employees at will; ; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between Fractal or guarantee might reasonably result in a Target Material Adverse Effect; any of its subsidiaries and any of its officers or directors; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target Fractal or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights; or (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or (f) any material joint marketing or development agreement. Neither Target nor any of its Subsidiaries, nor to Target's knowledge any other party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effect.12

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetParent's Board of Directors, other than those that are terminable by Target Parent or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willParent; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result of Parent and substantially in a Target Material Adverse Effectthe form provided to Company; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Parent or any of its Subsidiaries subsidiaries to engage in any line of business (other than with respect to limitations on the distribution by Parent of certain content and service providers), or to compete with any person; orperson or granting any exclusive distribution rights of Parent services; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Parent or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetParent's Subsidiariessubsidiaries; (i) any dealer, distributor, joint marketing or development agreement currently in force under which Parent or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or (ii) any material agreement pursuant to which Parent or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Parent or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less except for agreements, contracts or commitments with an annual value of less than $100,000; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Parent and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Parent product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Parent products, service or technology except those agreements with customers, distributors or sales representatives made in the normal course of business and substantially in the form previously provided to Company; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that involves annual expenditures or receipts of $2,500,000 or more individually. Neither Target Parent nor any of its Subsidiariessubsidiaries, nor to TargetParent's knowledge any other party to a Target Parent Contract (as defined below), is in breach, violation or default under, and neither Target Parent nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Parent or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Parent Schedule (any such agreement, contract or commitment, a "Target ContractPARENT CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Parent Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as set forth in Section 2.16 and Section 2.2(b) of the date of ------------------------------------- this AgreementCompany Shareholders Disclosure Letter, neither Target nor any of its Subsidiaries the Company is not a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of Target's the Company’s Board of Directors, other than those that are terminable by Target or any of its Subsidiaries the Company on no more than 30 ninety (90) days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between the Company and any of its officers or guarantee might reasonably result in a Target Material Adverse Effectdirectors; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target or any of its Subsidiaries the Company to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or (f) any material joint marketing or development agreement. Neither Target nor any of its SubsidiariesThe Company, nor or to Target's the Company Shareholders' knowledge any other party to a Target Company Contract (as defined belowherein), is in breachhas breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries the Company is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described -12- in the Target Disclosure Schedule clauses (a) through (f) above (any such agreement, contract or commitment, a "Target Contract"“COMPANY CONTRACT”) in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remediesdamages, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectbe material to the Company.

Agreements, Contracts and Commitments. As (a) Section 3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of ------------------------------------- this AgreementAgreement (each, neither Target nor any of its Subsidiaries is a party to or is bound by:“Company Material Contract” and collectively, the “Company Material Contracts”): (ai) any employment or consulting agreement, contract or commitment with any officer or member of Target's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except each Company Contract relating to the extent general principles employment of, or the performance of wrongful termination law may limit Target's employment-related services by, any current Company Associate that is not immediately terminable at-will by the Company without notice, severance, or any of its Subsidiaries' ability to terminate employees at willother similar cost or liability; (bii) any agreement each Company Contract the primary purpose of which is indemnification or any guaranty other than any agreement of indemnification guaranty, except as entered into in connection with the sale or license Ordinary Course of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse EffectBusiness; (ciii) any agreement, contract or commitment each Company Contract containing (A) any covenant limiting in any material respect the right freedom of Target the Company or any of its Subsidiaries the Surviving Corporation to engage in any line of business or to compete with any person; orPerson, (B) any most-favored pricing arrangement, (C) any exclusivity provision or (D) any non-solicitation provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the ability of Company to conduct its business; (div) any agreement, contract or commitment currently each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in force excess of $100,000 pursuant to its express terms and not cancelable without penalty; (v) each Company Contract relating to the disposition or acquisition by Target of material assets or any ownership interest in any Entity, in each case, involving payments in excess of its Subsidiaries $100,000; (vi) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company, in each case, having an outstanding principal amount in excess of $100,000; (vii) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to: (A) any material assets not distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which the ordinary course of business Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Target the Company has continuing obligations to develop any ownership interest Intellectual Property that will not be owned, in whole or in part, by the Company or (D) any corporationCompany Contract to license any patent, partnershiptrademark registration, joint venture service ▇▇▇▇ registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business; (viii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other business enterprise other than Target's Subsidiaries. Neither Target nor Person, providing advisory services to the Company in connection with the Contemplated Transactions; (ix) each Company Real Estate Lease; (x) each Company Contract to which the Company is a party or by which any of its Subsidiariesassets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $100,000; or (xi) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company, as applicable, and (A) which involves payment or receipt by the Company after the date of this Agreement under any such agreement, contract or commitment of more than $100,000 in the aggregate, or obligations after the date of this Agreement in excess of $100,000 in the aggregate or (B) that is material to the business or operations of the Company. (b) The Company has delivered or made available to PubCo accurate and complete copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in written form. The Company has not, nor to Target's knowledge the Company’s Knowledge, as of the date of this Agreement has any other party to a Target Contract (as defined below)Company Material Contract, is in breachbreached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") Company Material Contract in such a manner as would permit any other party to cancel or terminate any such Target Company Material Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would reasonably be reasonably likely expected to have a Target Company Material Adverse Effect. As to the Company, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. As of the date of this Agreement, no Person is renegotiating with the Company 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. As (a) Section 2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of ------------------------------------- this AgreementAgreement (each, neither Target nor any of its Subsidiaries is a party to or is bound by:“Company Material Contract” and collectively, the “Company Material Contracts”): (ai) each Company Contract relating to any material bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (ii) each Company Contract requiring payments by the Company after the date of this Agreement in excess of $150,000 per year pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or entity providing employment-related, consulting agreementor independent contractor services, contract or commitment with any officer or member of Target's Board of Directors, other than those that are not terminable by Target the Company or any of its Subsidiaries on no more than 30 days 90 calendar days’ or less notice without liability or financial obligationliability, except to the extent general principles of wrongful termination law may limit Target's or any of the Company’s, its Subsidiaries' ’ or such successor’s ability to terminate employees at will; (biii) each Company Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), or the value of any of the benefits of which will be calculated on the basis of any of the Contemplated Transactions; (iv) each Company Contract relating to any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license Ordinary Course of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse EffectBusiness; (cv) any agreement, contract or commitment each Company Contract containing (A) any covenant limiting in any material respect the right freedom of Target or any of the Company, its Subsidiaries or the Surviving Corporation to engage in any line of business or to compete with any person; orPerson, (B) any most-favored pricing arrangement, (C) any exclusivity provision, or (D) any non-solicitation provision; (dvi) any agreement, contract or commitment currently each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in force excess of $250,000 pursuant to its express terms and not cancelable without penalty; (vii) each Company Contract relating to the disposition or acquisition by Target of material assets or any ownership interest in any Entity; (viii) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $250,000 or creating any material Encumbrances with respect to any assets of the Company or any of its Subsidiaries or any loans or debt obligations with officers or directors of the Company; (ix) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $250,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business; (x) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions; (xi) each Company Real Estate Lease; or (xii) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company or its Subsidiaries, as applicable, and (A) which involves payment or receipt by the Company or its Subsidiaries after the date of this Agreement under any such agreement, contract or commitment of any more than $250,000 in the aggregate, or obligations after the date of this Agreement in excess of $250,000 in the aggregate, or (B) that is material assets to the business or operations of the Company and its Subsidiaries, taken as a whole. (b) The Company has delivered or made available to Nautilus accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiarieswritten form. Neither Target the Company nor any of its SubsidiariesSubsidiaries has, nor to Target's knowledge the Company’s Knowledge, as of the date of this Agreement has any other party to a Target Contract (as defined below)Company Material Contract, is in breachbreached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") Company Material Contract in such a manner as would permit any other party to cancel or terminate any such Target Company Material Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would reasonably be reasonably likely expected to have a Target Company Material Adverse Effect. As to the 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 the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company under any Company Material Contract or any other material term or provision of any Company Material Contract.

Agreements, Contracts and Commitments. As (a) Section 3.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of ------------------------------------- this AgreementAgreement (each, neither Target nor any of its Subsidiaries is a party to or is bound by:“Company Material Contract” and collectively, the “Company Material Contracts”): (ai) any employment or consulting agreement, contract or commitment with any officer or member of Target's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except each Company Contract relating to the extent general principles employment of, or the performance of wrongful termination law may limit Target's employment-related services by, any current Company Associate that is not immediately terminable at-will by the Company without notice, severance, or any of its Subsidiaries' ability to terminate employees at willother similar cost or liability; (bii) any agreement each Company Contract the primary purpose of which is indemnification or any guaranty other than any agreement of indemnification guaranty, except as entered into in connection with the sale or license Ordinary Course of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse EffectBusiness; (ciii) any agreement, contract or commitment each Company Contract containing (A) any covenant limiting in any material respect the right freedom of Target the Company or any of its Subsidiaries the Surviving Corporation to engage in any line of business or to compete with any person; orPerson, (B) any most-favored pricing arrangement, (C) any exclusivity provision, or (D) any non-solicitation provision with respect to employees of other Persons, in each case, except for restrictions that would not materially affect the ability of Company to conduct its business; (div) any agreement, contract or commitment currently each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in force excess of $100,000 pursuant to its express terms and not cancelable without penalty; (v) each Company Contract relating to the disposition or acquisition by Target of material assets or any ownership interest in any Entity, in each case, involving payments in excess of its Subsidiaries $100,000; (vi) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company, in each case, having an outstanding principal amount in excess of $100,000; (vii) each Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to: (A) any material assets not distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which the ordinary course of business Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Target the Company has continuing obligations to develop any ownership interest Intellectual Property that will not be owned, in whole or in part, by the Company, or (D) any corporationCompany Contract to license any patent, partnershiptrademark registration, joint venture service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business; (viii) each Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other business enterprise other than Target's Subsidiaries. Neither Target nor Person, providing advisory services to the Company in connection with the Contemplated Transactions; (ix) each Company Real Estate Lease; (x) each Company Contract to which the Company is a party or by which any of its Subsidiariesassets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, the Company in excess of $100,000; or (xi) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company, as applicable, and (A) which involves payment or receipt by the Company after the date of this Agreement under any such agreement, contract or commitment of more than $100,000 in the aggregate, or obligations after the date of this Agreement in excess of $100,000 in the aggregate, or (B) that is material to the business or operations of the Company. (b) The Company has delivered or made available to PubCo accurate and complete copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in written form. The Company has not, nor to Target's knowledge the Company’s Knowledge, as of the date of this Agreement has any other party to a Target Contract (as defined below)Company Material Contract, is in breachbreached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") Company Material Contract in such a manner as would permit any other party to cancel or terminate any such Target Company Material Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would reasonably be reasonably likely expected to have a Target Company Material Adverse Effect. As to the Company, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. As of the date of this Agreement, no Person is renegotiating with the Company 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. As (a) Except as listed in Part 2.9(a) of the Advaxis Disclosure Schedule, as of the date of ------------------------------------- this Agreement, neither Target Advaxis nor any of its Subsidiaries is a party to or is bound byby any: (ai) Advaxis Contract that would be required to be filed by Advaxis as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed on a Current Report on Form 8-K that has not been filed or incorporated by reference in the Advaxis SEC Reports; (ii) Advaxis Contract relating to any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements; (iii) Advaxis Contract relating to the employment of, or consulting agreementthe performance of employment-related services by, contract any Person, including any employee, consultant or commitment with any officer or member of Target's Board of Directorsindependent contractor, other than those that are not terminable by Target Advaxis or any of its Subsidiaries on no more than 30 days ninety (90) days’ notice without liability or financial obligationliability, except to the extent general principles of wrongful termination law may limit Target's or any of Advaxis’, its Subsidiaries' ’ or such successor’s ability to terminate employees at will; (biv) Advaxis Contract relating to any agreement or plan, including any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty of the Transactions, including the Merger (either alone or in conjunction with any other than event, such as termination of employment), or the value of any agreement of indemnification entered into in connection with the sale or license benefits of software products in which will be calculated on the ordinary course basis of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectany of the Transactions; (cv) indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of indebtedness, in each case providing for indebtedness in excess of $100,000, other than indebtedness solely between or among any of Advaxis and any of its wholly owned Subsidiaries; (vi) Advaxis Contract relating to any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target or any of Advaxis, its Subsidiaries or the Surviving Company to engage in any line of business or to compete with any person; orPerson; (dvii) Advaxis Contract that contains a put, call, right of first refusal or similar right pursuant to which Advaxis or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person; (viii) material settlement agreement or similar agreement with a Governmental Authority to which Advaxis or any of its Subsidiaries is a party that contains material obligations or limitations on Advaxis’ or such Subsidiary’s conduct; (ix) Advaxis Contract relating to any agreement, contract or commitment relating to capital expenditures and involving obligations after the date of this Agreement in excess of $100,000 and not cancelable without penalty; (x) Advaxis Contract relating to any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets or any ownership interest in any Entity in excess of $100,000; (xi) Advaxis Contract relating to (i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Advaxis (iii) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Advaxis or its Subsidiaries has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Advaxis or its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by Target Advaxis or such Subsidiary; or (iv) any Contract currently in force to license any third party to manufacture or produce any Advaxis product, service or technology or any Contract currently in force to sell, distribute or commercialize any Advaxis products or service, except, in each case, agreements entered in the Ordinary Course of Business; (xii) Advaxis Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Advaxis in connection with the transactions set forth in this Agreement, including the Merger; (xiii) Advaxis Contract pursuant to which any Advaxis IP Rights are licensed by or to Advaxis or any of its Subsidiaries, other than (A) “shrink wrap” or other licenses for generally commercially available software (including open source software) or hosted services, (B) customer or channel partner Advaxis Contracts substantially on Advaxis’ or any of its Subsidiaries’ standard forms, (C) Advaxis Contracts that authorizes Advaxis or any of its Subsidiaries to identify another Person as a customer, vendor, supplier or partner or that authorizes another Person to identify Advaxis or any of its Subsidiaries as a customer, vendor, supplier or partner of such Person, (D) Advaxis Contracts that provide a limited, non-exclusive license to use the trademarks included in the Advaxis IP Rights to promote any products or services of Advaxis or its Subsidiaries or to otherwise provide such products or services to others, (E) Advaxis Contracts with Advaxis’ or its Subsidiaries’ employees or contractors substantially on Advaxis’ or its Subsidiaries’ standard forms, and (F) non-disclosure agreements (the “Advaxis Standard Contracts”); or (xiv) other agreement, contract or commitment (i) which involves payment or receipt by Advaxis or its Subsidiaries under any such agreement, contract or commitment of $100,000 or more in the aggregate or obligations after the date of this Agreement in excess of any material assets $100,000 in the aggregate, or (ii) that may not be terminable with no liability or cost within ninety (90) days. Each such Contract described in clauses (a) through (n) is referred to herein as an “Advaxis Material Contract”. (b) Advaxis has delivered to Biosight accurate and complete (except for applicable redactions thereto) copies of all Advaxis Material Contracts, including all amendments thereto. There are no Advaxis Material Contracts that are not in written form. Except as would not reasonably be expected to have, individually or in the ordinary course of business or pursuant to which Target has any ownership interest in any corporationaggregate, partnershipan Advaxis Material Adverse Effect, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target nor any of its Subsidiaries, nor to Target's knowledge any other party to a Target Contract (as defined below), is in breach, violation or default under, and i) neither Target Advaxis nor any of its Subsidiaries has received written notice is (except for notices delivered prior and, to January 1the Knowledge of Advaxis, 1995 regarding matters no other party is) in default under or breach of any Contract to which were subsequently resolved or Advaxis is a party, there are no longer pending) that it has breachedevents or conditions, violated including with respect to any events or defaulted under, any conditions as a result of the material terms COVID-19 pandemic, which constitute, or, after notice or conditions lapse of any time or both, will constitute, a default on the part of the agreements, contracts or commitments to which Target Advaxis or any of its Subsidiaries or, to the Knowledge of Advaxis, any counterparty under such Advaxis Contract, (ii) each of the Advaxis Material Contracts is in full force and effect and is a party or by valid, binding and enforceable obligation of Advaxis and its Subsidiaries, except (A) that such enforcement may be subject to the Bankruptcy and Equity Exception, (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which it is bound any proceedings therefor may be brought, and (C) to the extent that are any Advaxis Material Contract expires in accordance with its terms, and (iii) Advaxis and its Subsidiaries have performed all respective material obligations required to be filed as an exhibit performed by them to date under the Advaxis Material Contracts to which they are a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectparty.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries ------------------------------------- subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license or purchase of software products or services in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (h) any material agreement, contract or commitment, other than standard end-user license agreements and related maintenance and support agreements entered into in the ordinary course of business, currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, leases, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that has a value of $250,000 or more individually. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule (any such agreement, contract or commitment, a "Target Company Contract") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party reasonably be expected, either individually or in the aggregate, to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have result in a Target Material Adverse EffectEffect on Company.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries ------------------------------------- subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetMCS's Board of Directors, other than those that are terminable by Target MCS or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willMCS; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target MCS or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target MCS or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target MCS has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetMCS's Subsidiariessubsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which MCS or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which MCS or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by MCS or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to MCS and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any MCS product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any MCS products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to NetIQ; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that has a value of $2,000,000 or more individually, other than the transactions contemplated by the LOI. Neither Target MCS nor any of its Subsidiariessubsidiaries, nor to TargetMCS's knowledge any other party to a Target MCS Contract (as defined below), is in breach, violation or default under, and neither Target MCS nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target MCS or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule MCS Schedules (any such agreement, contract or commitment, a "Target MCS Contract") in such a manner as would permit any other party to cancel or terminate any such Target MCS Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of (a) Except as set forth on Schedule 2.12(a), the date of ------------------------------------- this AgreementCompany does not have, neither Target nor any of its Subsidiaries is not a party to or nor is it bound by: (ai) any employment fidelity or consulting agreement, contract surety bond or commitment with any officer or member of Target's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will;completion bond, (bii) any lease of personal property having a value individually in excess of $100,000 annually, (iii) any agreement of indemnification or any guaranty guaranty, other than any agreement of indemnification such agreements entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effect;and consistent with past practice, (civ) any agreement, contract or commitment containing any covenant limiting relating to capital expenditures and involving payments in any material respect the right excess of Target or any of its Subsidiaries to engage in any line of business or to compete with any person; or$100,000, (dv) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target the Company of assets or any interest in any business enterprise outside the ordinary course of its Subsidiaries after the date Company's business, (vi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of this Agreement money or extension of any material assets not credit, including guaranties referred to in clause (iv) hereof, other than advances to employees for travel and business expenses in the ordinary course of business consistent with past practices, (vii) any purchase order or pursuant to which Target has contract for the purchase of raw materials involving an annual payment of $100,000 or more, (viii) any ownership interest in construction contracts, (ix) any corporation, partnershipdistribution, joint venture marketing or other business enterprise other than Target's Subsidiaries. Neither Target nor any of its Subsidiariesdevelopment agreement, nor to Target's knowledge or (x) any other party agreement, contract or commitment that involves an annual payment of $100,000 or more or is not cancelable without penalty within thirty (30) days. (b) Except for such alleged breaches, violations and defaults, and events that would (i) constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b) or (ii) would not, individually or in the aggregate, reasonably be expected to have a Target Contract (as defined below)Material Adverse Effect, the Company is not in breach, violation or default under, and neither Target nor any of its Subsidiaries has not received written notice that it is in breach, violation or default (except for notices delivered prior relating to January 1breaches, 1995 regarding matters which were subsequently resolved violations or are no longer pendingdefaults that have been cured or corrected in all material respects) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreementsagreement, contracts contract or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are commitment required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure set forth on Schedule 2.12(a) (any each such agreement, contract or commitment, commitment a "Target ContractCONTRACT") in such a manner as would permit any other party to cancel or terminate ), except for any such Target Contractbreaches, violations or defaults that, individually or in the aggregate, would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would not reasonably be reasonably likely expect to have a Target Material Adverse Effect. Each Contract is in full force and effect and, except as otherwise disclosed in Schedule 2.12(b), to the knowledge of each Seller Group Member, is not subject to any default thereunder by any party obligated to the Company pursuant thereto. Following the Effective Time, without giving effect to any restrictions which might be imposed as a result of being an Affiliate of Purchaser, the Surviving Corporation will be permitted to exercise all of the Company's rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurred.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this AgreementExcept as set forth in Integrated Disclosure Letter, Integrated is neither Target nor any of its Subsidiaries is a party to or nor is bound by: (a) : any employment or consulting agreement, contract or commitment with any officer or director level employee or member of TargetIntegrated's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries Integrated on no more than 30 thirty days notice without liability or financial obligation; any agreement or plan, except to the extent general principles of wrongful termination law may limit Target's including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of its Subsidiaries' ability to terminate employees at will; (b) the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between the Parent and any of its officers or guarantee might reasonably result in a Target Material Adverse Effect; (c) directors; any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target or any of its Subsidiaries the Parent to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights; or (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or any material joint marketing or development agreement. Neither Target nor any of its SubsidiariesIntegrated, nor to TargetIntegrated's knowledge any other party to a Target Integrated Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries the Parent is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described in the Target Disclosure Schedule clauses (a) through (f) above (any such agreement, contract or commitment, a "Target ContractINTEGRATED CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Integrated Contract, or would permit any other party to seek damages or other remediesdamages, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effect.be material to Integrated..

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or member of Target's Board of Directors, Employee Agreement other than those that are terminable by Target Company or any of its Subsidiaries on no more than 30 days subsidiaries without notice and without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's Company or any subsidiary of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or in combination with any subsequent event or events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty by Company or any of its subsidiaries other than any agreement of indemnification entered into in connection with the sale or license by Company or any of software its subsidiaries of products or services in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any material line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (g) any material agreement, contract or commitment, other than standard end-user license, distribution and sale agreements and related maintenance and support agreements entered into in the ordinary course of business, currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors, VARs, service providers, enterprises or sales representatives in the normal course of business; (h) any mortgages, leases, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, other than accounts receivable and payables in the ordinary course of business; (i) any settlement agreements, the terms of which materially affect the conduct of Company's business; or (j) any other agreement, contract or commitment that has a value of $5,000,000 or more individually and not described in clauses (a) through (i) above. Neither Target nor Company or any of its Subsidiariessubsidiaries nor, nor to TargetCompany's knowledge knowledge, any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound bound, in each case, that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in Section 2.19 of the Target Disclosure Company Schedule (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") ), except for breaches, violations or defaults that, individually or in such a manner as the aggregate, would permit any other party not reasonably be expected to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectmaterial Company.

Agreements, Contracts and Commitments. As Except as set forth in Section 2.21 of the date of ------------------------------------- this AgreementCompany Schedule, neither Target Company nor any of its Subsidiaries either Subsidiary is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer officer, director or member of Target's Board of Directorsemployee, other than those that are terminable by Target Company or any of its Subsidiaries Subsidiary on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's Company or any of its Subsidiaries' ability to terminate employees at willSubsidiary; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale services provided or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (c) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target or any of its Subsidiaries to engage in any line of business or to compete with any person; or (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries either Subsidiary after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or either Subsidiary has any material ownership interest in any corporation, partnership, joint venture or other business enterprise enterprise; (e) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (f) any settlement agreement entered into within five (5) years prior to the date of this Agreement, except settlement agreements with employees of Company that impose no ongoing obligations on Company or either Subsidiary; (g) any contracts or agreements that limit or restrict Company or either Subsidiary, or to Company's knowledge, any of their officers or key employees, from engaging in any business or any contracts or agreements that limit or restrict anyone other than TargetCompany's Subsidiariesor either Subsidiary's employees or consultants from competing with Company or either Subsidiary; (h) any contract, agreement or commitment requiring Company or either Subsidiary to register the resale of its capital stock or securities under federal or state securities laws; (i) any powers of attorney or comparable delegations of authority granted by Company or either Subsidiary; or (j) any other agreement, contract or commitment that has a value of $100,000 or more individually. Neither Target nor any of its SubsidiariesCompany, either Subsidiary, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target nor any each of its Subsidiaries Company and each Subsidiary has not received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries either Subsidiary is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule (any such agreement, contract or commitment, a "Target Company Contract") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as set forth in Section 2.16 and Section 2.2(b) of the date of ------------------------------------- this AgreementCompany Disclosure Letter, neither Target nor any of its Subsidiaries the Company is not a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of Targetthe Company's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries the Company on no more than 30 thirty (30) days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between the Company and any of its officers or guarantee might reasonably result in a Target Material Adverse Effectdirectors; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target or any of its Subsidiaries the Company to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or (f) any material joint marketing or development agreement. Neither Target nor any of its SubsidiariesThe Company, nor or to Targetthe Company's knowledge any other party to a Target Company Contract (as defined belowherein), is in breachhas breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries the Company is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described in the Target Disclosure Schedule clauses (a) through (f) above (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remediesdamages, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectbe material to the Company.

Agreements, Contracts and Commitments. As of Except as set forth in the date of ------------------------------------- this AgreementMetaTools Schedules, neither Target MetaTools nor any of its Subsidiaries subsidiaries is a party to or is bound by: : (a) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of Target's MetaTools' Board of Directors, other than those that are terminable by Target MetaTools or any of its Subsidiaries subsidiaries on no more than 30 thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's MetaTools' or any of its Subsidiariessubsidiaries' ability to terminate employees at will;; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; 20 (bc) any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between MetaTools or guarantee might reasonably result in a Target Material Adverse Effect; any of its subsidiaries and any of its officers or directors; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target MetaTools or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights; or (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or (f) any material joint marketing or development agreement. Neither Target MetaTools nor any of its Subsidiariessubsidiaries, nor to Target's MetaTools' knowledge any other party to a Target MetaTools Contract (as defined below), is in breachhas breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, breached violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target MetaTools or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described in the Target Disclosure Schedule clauses (a) through (l) above (any such agreement, contract or commitment, a "Target ContractMETATOOLS CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target MetaTools Contract, or would permit any other party to seek damages or other remediesdamages, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectbe material to MetaTools.

Agreements, Contracts and Commitments. As Except as set forth in Section 2.16 and Section 2.2(b) of the date of ------------------------------------- this AgreementCompany Shareholders Disclosure Letter, neither Target nor any of its Subsidiaries the Company is not a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of Target's the Company’s Board of Directors, other than those that are terminable by Target or any of its Subsidiaries the Company on no more than 30 ninety (90) days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between the Company and any of its officers or guarantee might reasonably result in a Target Material Adverse Effectdirectors; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target or any of its Subsidiaries the Company to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or (f) any material joint marketing or development agreement. Neither Target nor any of its SubsidiariesThe Company, nor or to Target's the Company Shareholders' knowledge any other party to a Target Company Contract (as defined belowherein), is in breachhas breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries the Company is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described in the Target Disclosure Schedule clauses (a) through (f) above (any such agreement, contract or commitment, a "Target “Company Contract"”) in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remediesdamages, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectbe material to the Company.

Agreements, Contracts and Commitments. As of Except as set forth in the date of ------------------------------------- this AgreementParent Disclosure Letter, neither Target nor any of its Subsidiaries the Parent is not a party to or nor is it bound by: (a) : any employment or consulting agreement, contract or commitment with any officer or director level employee or member of Targetthe Parent's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries the Parent on no more than 30 thirty (30) days notice without liability or financial obligation; any agreement or plan, except to the extent general principles of wrongful termination law may limit Target's including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of its Subsidiaries' ability to terminate employees at will; (b) the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; any agreement of indemnification or any guaranty other than any agreement of indemnification not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between the Parent and any of its officers or guarantee might reasonably result in a Target Material Adverse Effect; (c) directors; any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target or any of its Subsidiaries the Parent to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights; or (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiariesenterprise; or any material joint marketing or development agreement. Neither Target nor any of its SubsidiariesThe Parent, nor or to Targetthe Parent's knowledge any other party to a Target Parent Contract (as defined belowherein), is in breachhas not breached, violation violated or default defaulted under, and neither Target nor any of its Subsidiaries has or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries the Parent is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed of the type described in the Target Disclosure Schedule clauses (a) through (f) above (any such agreement, contract or commitment, a "Target ContractPARENT CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Parent Contract, or would permit any other party to seek damages or other remediesdamages, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectbe material to the Parent.

Agreements, Contracts and Commitments. As (a) ATS and ATLANTIC is not a party to, as of the date of ------------------------------------- this Agreementhereof, neither Target nor (i) any of its Subsidiaries is a party to collective bargaining agreements or is bound by: any agreements that contain any severance pay liabilities or obligations, (aii) any Employee Benefit Plans, (iii) any employment or consulting agreement, contract or commitment with any officer an employee, or member of Target's Board of Directorsagreements to pay severance, (iv) other than those that are terminable by Target the continuing employment of J▇▇▇▇ ▇▇▇▇▇▇▇▇ and M▇▇▇▇▇ ▇▇▇▇▇▇▇▇, any agreements between or any among ATS and ATLANTIC or one of its Subsidiaries on no more than 30 days notice without liability Affiliates or financial obligationwith any Related Person of ATS and ATLANTIC, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (bv) any agreement of indemnification agreement, indenture or any guaranty other than instrument for borrowed money and any agreement or other instrument which contains restrictions with respect to payment of indemnification entered into distributions in connection with the sale or license respect of software products any outstanding Securities that has not been disclosed to Cerberus in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effect; writing, (cvi) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target or any of its Subsidiaries ATS and ATLANTIC to engage or compete in any line of business or to compete with any person; or Person or in any geographic area during any period of time, (dvii) any agreement, contract or commitment currently relating to capital expenditures in force excess of $5,000, that has not been disclosed to Cerberus in writing; (viii) any agreement, contract or commitment relating to the acquisition, disposition or acquisition voting of assets or capital stock of any business enterprise, including ATS and ATLANTIC, (ix) any contract that requires ATS and ATLANTIC to purchase its total requirements of any product or service from a third party, that has not been disclosed to Cerberus in writing; (x) any contract that provides for the indemnification by Target ATS and ATLANTIC of any Person for, or the assumption of, any Tax, environmental or other liability of its Subsidiaries any Person, that has not been disclosed to Cerberus in writing; (xi) any broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising contract to which ATS and ATLANTIC is a party, that has not been disclosed to Cerberus in writing; (xii) except for contracts relating to trade receivables, any contract relating to indebtedness (including guarantees) of ATS and ATLANTIC, that has not been disclosed to Cerberus in writing; (xiii) any contract with any Governmental Authority to which ATS AND ATLANTIC is a party, that has not been disclosed to Cerberus in writing; (xiv) any contract to which ATS AND ATLANTIC is a party that provides for any joint venture, partnership or similar arrangement by ATS AND ATLANTIC, (xv) any tax partnership agreement, (xvi) any agreement that provides for an irrevocable power of attorney that will be in effect after the date Closing Date or (xvii) any agreement that constitutes a lease of this Agreement of any material assets real property, that has not been disclosed to Cerberus in writing (it being acknowledged by the ordinary course of business or pursuant to Parties that the Shareholder owns the real property in which Target has any ownership interest in any corporationATS AND ATLANTIC currently operate, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target nor any of its Subsidiaries, nor to Target's knowledge any other party and is subject to a Target Contract Lease Agreement). ATS AND ATLANTIC has made available to Cerberus accurate and complete copies of all written Material Contracts, including all amendments thereto. (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries b) ATS AND ATLANTIC has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, not materially breached any of the material terms or conditions of any lease, contract, agreement, commitment, instrument or understanding (whether written or oral). There is not, to the Knowledge of ATS AND ATLANTIC, under any Material Contract, any default or event which, with notice or lapse of time or both, would constitute a material default on the part of any of the agreementsparties thereto, contracts or commitments to which Target or any notice of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages cancellation or material modification. (c) Except to the extent the enforceability thereof may be limited by Creditor Rights, each of the Material Contracts (i) constitutes the valid and binding obligation of ATS AND ATLANTIC and constitutes the valid and binding obligation of the other remedies would be reasonably likely parties thereto, (ii) is in full force and effect and (iii) immediately after the Closing, will continue to have constitute a Target Material Adverse Effectvalid and binding obligation of ATS AND ATLANTIC.

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer officer, director, Company employee currently earning an annual salary in excess of $100,000 or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any material agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that has a value of $500,000 or more individually. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreementhereof, except as provided in Parent Schedule 3.16, neither Target Parent nor any of its Subsidiaries subsidiaries is a party to or is bound by: (ai) any employment or consulting agreement, contract or commitment with any officer or director or member of TargetParent's Board of Directors, other than those that are terminable by Target Parent or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligationobligation to Parent, except to the extent general principles (ii) any such agreement, contract or commitment with any employee, consultant, stockholder or other person that will result in any obligation of wrongful termination law may limit Target's Parent or any of its Subsidiaries' ability subsidiaries to terminate employees at willmake any payments as a result of the transactions contemplated hereby, (iii) any agreement with any employee, consultant or stockholder of Parent pursuant to which Parent has loaned or is obligated to loan any money thereto or (iv) any arrangement or agreement providing for severance or termination pay; (b) any agreement or plan, including, without limitation, any stock option plan, warrant agreement, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any guaranty other than of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification entered into of officers, directors or employees of Parent, except as provided for in connection with the sale Parent's Articles of Incorporation or license Bylaws, or any guaranty of software products in the ordinary course third party indebtedness or of business where such agreement obligations of officers, directors, employees or guarantee might reasonably result in a Target Material Adverse Effectagents of Parent; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Parent or any of its Subsidiaries subsidiaries to engage in any line of business in any geographic area or to compete with any person; orperson or granting to any person any interest in Parent's distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Parent or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Parent has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetParent's Subsidiariessubsidiaries; (f) any contract, agreement or commitment containing exclusivity provisions pursuant to which Parent has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (h) any settlement agreement relating to any claim or suit; (i) any real property lease covering more than 25,000 square feet; or (j) any other agreement, lease, contract or commitment that involves remaining obligations of Parent of $100,000 or more individually. Neither Target Parent nor any of its Subsidiariessubsidiaries, nor to TargetParent's knowledge any other party to a Target Parent Contract (as defined below), is in breach, violation or default under, and neither Target Parent nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Parent or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule Parent Schedules (any such agreement, contract or commitment, a "Target ContractPARENT CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Parent Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as disclosed in Section 2.19 of the date of ------------------------------------- this AgreementCompany Schedule, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license sale, license, distribution and development of software products and advertising in the ordinary course Ordinary Course of business where such agreement or guarantee might reasonably result in a Target Material Adverse EffectBusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course Ordinary Course of business Business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or granting any Lien on any assets or properties of the Company or any of its subsidiaries; (j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; (k) any other agreement, contract or commitment that has a value of $25,000 or more individually; (l) any agreement (or group of related agreements) for the lease of personal property to or from any person that involves aggregate annual payments of more than $25,000; (m) any agreement under which the consequences of a default or termination could reasonably be anticipated to have a Material Adverse Effect on the Company; (n) any agreement (or group of related agreements) for the purchase or sale of commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $25,000; (o) any agreement for the purchase of supplies, components, products or services from single source suppliers, custom manufacturers or subcontractors that involves aggregate annual payments of more than $25,000; (p) any agreement concerning a partnership or joint venture; (q) any agreement with any Company stockholder or any of such Company stockholder's Affiliates (other than the Company) or with any Affiliate of the Company; (r) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers or employees; (s) any collective bargaining agreement; (t) any executory agreement under which the Company has advanced or loaned any amount to any of its directors, officers, and employees; (u) any advertising services, e-commerce or other agreement involving the promotion of products and services of third parties by the Company; (v) any executory agreement pursuant to which the Company is obligated to provide maintenance, support or training for its services or products; (w) any revenue or profit participation agreement which involves aggregate annual payments of more than $25,000; and (x) any license, agreement or other permission which the Company or any Affiliate of the Company has granted to any third party with respect to any of the Intellectual Property used in the Company's business. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As (a) Except as set forth in Schedule 2.12(a) of the Stockholder Disclosure Letter, as of the date of ------------------------------------- this Agreementhereof, neither Target the Company, WW nor any of its Subsidiaries Subsidiary has, is a party to or to, is bound by:, and the Business is not the beneficiary of, or subject to, any of the following (those agreements, arrangements, contracts or commitments to which the Business is subject, but to which the Company, WW or the Subsidiaries is not, as between the Stockholder or its subsidiaries (other than the Company, WW and the Subsidiaries) and the Company, WW and the Subsidiaries, are clearly marked as such on Schedule 2.12(a)): (ai) any collective bargaining agreements, (ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, (iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, (iv) any employment or consulting agreement, contract or commitment with any officer an employee or member of Target's Board of Directors, other than those that are terminable by Target individual consultant or salesperson or any of its Subsidiaries on no more than 30 days notice without liability consulting or financial obligationsales agreement, except contract or commitment under which any firm or other organization provides services to the extent general principles of wrongful termination law may limit Target's Company, WW or any of its Subsidiaries' ability to terminate employees at will;Subsidiary, (bv) any agreement or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, (vi) any agreement or plan to issue, grant, deliver or sell or authorize, or that proposes the issuance, grant, delivery or sale of, or to purchase or that proposes the purchase of, any shares, or any rights attached to any shares, in the Company, WW or any Subsidiary or any securities convertible into or exchangeable for shares in the Company, WW or any Subsidiary, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating it to issue any shares in the Company, WW or any Subsidiary or other convertible securities, (vii) any fidelity or surety bond or completion bond, (viii) any lease of personal property requiring payments over the term of such lease or series of related leases individually in excess of $200,000 or any lease of real property, (ix) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effect;guaranty, (cx) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target the Company, WW or any of its Subsidiaries Subsidiary to engage in any line of business or to compete with any person; or, (dxi) any agreement, contract or commitment currently relating to capital expenditures or involving future payments or a series of related payments in force excess of $100,000, (xii) any agreement, contract or commitment relating to the disposition or acquisition by Target of assets or any of its Subsidiaries after the date of this Agreement of interest in any material assets not in business enterprise outside the ordinary course of business the Company's or WW's business, as applicable, (xiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (ix) hereof, (xiv) any purchase order or contract for the purchase of raw materials involving $50,000 or more, (xv) any construction contracts involving future payments or a series of related payments in excess of $50,000, (xvi) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use of distribution of the Company's or WW's products, technologies or services; (xvii) any distribution, joint marketing or development agreement that includes any provision granting any person a right of first refusal, right of first negotiation or exclusive, "most favored nation" or preferential placement or other preferential rights, (xviii) any agreement pursuant to which Target the Company, WW or any Subsidiary has developed for and/or delivered to or has received funds from any ownership interest in Governmental Entity to develop and/or deliver any corporationIntellectual Property, (xix) any agreement, partnership, joint venture contract or other business enterprise other than Target's Subsidiaries. Neither Target nor any commitment for the purchase of its Subsidiaries, nor to Target's knowledge advertising, (xx) any other party to agreement, contract or commitment that involves $100,000 or more or is not cancelable without penalty within thirty (30) days (b) Except for such alleged breaches, violations and defaults, and events that would constitute a Target Contract (as defined below), is in breach, violation or default underwith the lapse of time, and giving of notice, or both, as are all noted in Schedule 2.12(b) of the Stockholder Disclosure Letter, neither Target the Company, WW nor any Subsidiary nor the Stockholder nor any of its Subsidiaries subsidiaries has materially breached, violated or defaulted under, or received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has materially breached, violated or defaulted under, any of the material terms or conditions of any of the agreementsagreement, contracts contract or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are commitment required to be filed as an exhibit to a Target SEC Report set forth on Schedule 2.12(a) of the Stockholder Disclosure Letter or to be disclosed in Schedule 2.11(g) of the Target Stockholder Disclosure Schedule Letter (any such agreement, contract or commitment, a "Target Contract"). Each Contract is in full force and effect (assuming the Contracts have been duly authorized, executed and delivered by the respective other parties thereto) in such a manner as would permit and is not subject to any other default thereunder of which the Stockholder has Knowledge by any party obligated to cancel the Company, WW or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse EffectSubsidiary pursuant thereto.

Agreements, Contracts and Commitments. (a) As of the date of ------------------------------------- this Agreement, neither Target Sipex nor any of its Subsidiaries is a party to or is bound by: (ai) (A) any employment or consulting agreement, contract or commitment Contract with any officer or member of Target's Sipex’s Board of DirectorsDirectors or (B) any employment or consulting Contract with any Sipex employee, other consultant or independent contractor involving salary of greater than those that are terminable by Target or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will$200,000 per year; (bii) any Contract, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (iii) any agreement of material indemnification or any material guaranty by Sipex other than any agreement of indemnification or guaranty entered into in connection with the sale or license of software products in the ordinary course of business where such agreement on Sipex’s standard forms of indemnification or guarantee might reasonably result in a Target Material Adverse Effectguaranty (forms of which are attached to Section 3.16(a)(iii) of the Sipex Schedules); (civ) any agreement, contract or commitment Contract (A) containing any covenant limiting in any material respect the right of Target Sipex or any of its Subsidiaries to engage in any line of business or to compete with any person; orPerson or in any geographic area, (B) granting any exclusive rights (including distribution rights), or (C) purporting to limit the ability of Sipex or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or any business; (dv) any agreement, contract or commitment currently in force Contract (A) relating to the disposition or acquisition by Target Sipex or any of its Subsidiaries after the date of this Agreement of any capital stock or other equity interests or a material amount of assets or not in the ordinary course of business or business, (B) pursuant to which Target Sipex has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Sipex’s Subsidiaries. , or (C) entered into in the last three (3) years relating to the acquisition or disposition by Sipex or any of its Subsidiaries of stock or other equity interests or a material amount of assets not in the ordinary course of business; (vi) (A) joint marketing or development Contract currently in force under which Sipex or any of its Subsidiaries have continuing material obligations to jointly market any product, technology or service (including any Intellectual Property that will not be owned, in whole or in part, by Sipex or any of its Subsidiaries), or (B) any joint venture or partnership Contract; (vii) Contract currently in force to provide source code to any third party; (viii) any Contract currently in force to authorize or license any third party to manufacture or reproduce any Sipex product, service or technology; (ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (x) any leases for personal property involving payments in excess of $200,000 annually (including capital leases); (xi) any settlement agreement entered into within three (3) years prior to the date of this Agreement with respect to which Sipex has continuing obligations; (xii) any Contracts with Sipex’s top 10 distributors, independent sales representatives or others distributing Sipex’s products (measured by revenue) for the last 12 months; (xiii) any Contract (A) pursuant to which Sipex is required to provide notice of the discontinuance or end-of-life of any product, or (B) a continuity of supply Contract or any other Contract pursuant to which Sipex is required to provide a product for a fixed period of time; (xiv) any Contract with the top 10 non-distributor customers of Sipex and its Subsidiaries taken as a whole (measured by revenue) in the last 12 months; (xv) any other Contract that, either individually or taken together with all other contracts with the same party, (i) has in the last 12 months resulted in payments being made to Sipex in excess of $250,000 or (ii) is expected by Sipex, if fulfilled in accordance with its terms, to result in payments being made to Sipex in excess of $250,000 in the next 12 months; (xvi) any other Contract that, either individually or taken together with all other contracts with the same party, (i) has in the last 12 months resulted in payments being made by Sipex in excess of $250,000 or (ii) is expected by Sipex, if fulfilled in accordance with its terms, to result in payments being made by Sipex in excess of $250,000 in the next 12 months; and (xvii) any other Contract deemed to be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC. (b) Neither Target Sipex nor any of its Subsidiaries, nor to Target's Sipex’s knowledge any other party to a Target Sipex Contract (as defined below), is in material breach, violation or default under, and neither Target Sipex nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments Contracts to which Target Sipex or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule Sipex Schedules (including Sections 3.13(b), 3.8 and 3.16 (a)) (any such agreement, contract or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have a Target Material Adverse Effectan “Sipex Contract”).

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, -22- 27 or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products or services in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any material settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment under which Company or a subsidiary is contractually obligated to make or entitled to receive payments of $250,000 or more individually. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As Except as set forth in Section 3.18 of the date of ------------------------------------- this Agreement, neither Target Disclosure Letter (specifying the appropriate paragraph): (a) Neither Company nor any of its Subsidiaries is a party to to, or is it bound by: (ai) any employment any: (1) employment, contractor or consulting agreement, contract or commitment with any officer an Employee or member of Target's Board of Directorsindividual consultant, other than those that are terminable by Target contractor, or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products salesperson not in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effect; Company’s standard form; (c2) any agreement, contract or commitment containing to grant any covenant limiting bonus, severance, change in control or termination pay (in cash or otherwise) to any material respect Employee; or (3) any contractor, consulting or sales agreement, contract, or commitment with a firm or other organization; (ii) any agreement or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the right benefits of Target which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or in connection with additional or subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (iii) any fidelity or surety bond or completion bond; (iv) any collective bargaining, union or works council agreements; (v) any lease of personal property having a value in excess of CDN$25,000 individually or CDN$50,000 in the aggregate; (vi) any Contract, other than Company Standard Outbound Licenses, that provides for surety, guaranty or indemnification obligations of the Company or any of its Subsidiaries Subsidiaries, which obligations are not capped to engage in any line a maximum amount of business liability equal to the greater of CDN$100,000 or to compete with any person; orthe total amounts paid under the Contract; (dvii) any agreement, contract Contract relating to capital expenditures and involving future payments in excess of CDN$25,000 individually or commitment currently CDN$50,000 in force the aggregate; (viii) any Contract relating to the disposition or acquisition by Target of assets or any interest in any business enterprise outside the ordinary course of the Company’s business (which includes the business of any and all Subsidiaries); (ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (x) any purchase order or Contract for the purchase of materials involving in excess of CDN$25,000 individually or CDN$50,000 in the aggregate; (xi) any construction contracts; (xii) any joint marketing, affiliate, joint venture, partnership, strategic alliance or development Contract; (xiii) any Contract to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest; (xiv) any Contract pursuant to which the Company or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business has undertaken to, or pursuant to which Target has the receipt of revenue is contingent upon, the delivery of products or service offerings not in commercial existence as of the date hereof, and specifically not contingent upon the release of any ownership interest in new product or new version of an existing product; (xv) any corporationdealer, partnershipdistribution, joint venture sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other business enterprise Contract for use or distribution of the products, services or other than Target's Technology of the Company or any of its Subsidiaries. Neither Target nor ; or (xvi) any other Contract, including any service, operating or management agreement or arrangement with respect to any of the Leased Real Property, that involves CDN$25,000 individually or CDN$50,000 in the aggregate or more and is not cancelable without penalty within 30 days. (b) Each Contract to which the Company or any of its Subsidiaries is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company or any of its Subsidiaries, nor as applicable, enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect, unamended, with respect to Target's knowledge the Company or any of its Subsidiaries, as applicable, and, to the Knowledge of the Company and/or any of its Subsidiaries, any other party to a Target Contract (as defined below), is in breach, violation or default under, thereto. The Company and neither Target nor any each of its Subsidiaries is in material compliance with, and has not materially breached, violated or defaulted under, or received written notice (except for notices delivered prior or has any reason to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) believe that a customer may assert that it has materially breached, violated or defaulted under, any of the material terms or conditions of any such Contract, nor to the Knowledge of the agreementsCompany and/or any of its Subsidiaries is any party obligated to the Company and/or any of its Subsidiaries pursuant to any such Contract subject to any breach, contracts violation or commitments to which Target default thereunder, nor does the Company and/or any of its Subsidiaries have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company or any of its Subsidiaries is a party or by which it is bound that are any such other party. True and complete copies of each Contract disclosed in the Disclosure Letter or required to be filed as an exhibit disclosed pursuant to this Section 3.18 (each a Target SEC Report “Material Contract” and collectively, the “Material Contracts”) have been delivered to Parent. (c) The Company and each of its Subsidiaries has fulfilled all material obligations required pursuant to each Contract to have been performed by the Company or any of its Subsidiaries prior to the date hereof, and, without giving effect to the Arrangement, the Company and each of its Subsidiaries will fulfill, when due, all of its obligations under the Material Contracts that remain to be disclosed in performed after the Target Disclosure Schedule date hereof. (d) All outstanding indebtedness of the Company or any such agreementof its Subsidiaries, contract or commitmentother than indebtedness owing under the Company Convertible Debentures, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would may be reasonably likely to have a Target Material Adverse Effectprepaid without penalty.

Agreements, Contracts and Commitments. As of Except as otherwise set forth in the date of ------------------------------------- this AgreementCompany Schedules, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty days' notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit TargetCompany's or any of its Subsidiariessubsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of 90 days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of 90 days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; or (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company product, service or technology except as a distributor in the normal course of business. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule Company Schedules pursuant to clauses (a) through (h) above or pursuant to Section 2.9 hereof (any such agreement, contract or commitment, a "Target ContractCOMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries ------------------------------------- subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetNetIQ's Board of Directors, other than those that are terminable by Target NetIQ or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willNetIQ; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target NetIQ or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target NetIQ or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target NetIQ has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetNetIQ's Subsidiariessubsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which NetIQ or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which NetIQ or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by NetIQ or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to NetIQ and its subsidiaries taken as a whole; (h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any NetIQ product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any NetIQ products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to MCS; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that has a value of $2,000,000 or more individually, other than in the event of an assignment of the LOI pursuant to Section 5.20, the transactions contemplated by the LOI. Neither Target NetIQ nor any of its Subsidiariessubsidiaries, nor to TargetNetIQ's knowledge any other party to a Target NetIQ Contract (as defined below), is in breach, violation or default under, and neither Target NetIQ nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target NetIQ or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule NetIQ Schedules (any such agreement, contract or commitment, a "Target NetIQ Contract") in such a manner as would permit any other party to cancel or terminate any such Target NetIQ Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any written employment or consulting agreement, contract or commitment with any officer or employee of Company or any of its subsidiaries currently earning an annual salary in excess of $100,000 or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without material liability or financial obligationobligation to Company, except to the extent general principles of wrongful termination law may limit TargetCompany's or any of its Subsidiaries' ability to terminate employees at will; (b) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale of products or license of software products technology in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (c) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (d) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (e) any material dealer, distributor, joint marketing or development agreement under which Company or any of its subsidiaries have continuing obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any agreement pursuant to which Company or any of its subsidiaries have continuing obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (f) any material agreement, contract or commitment to license any third party to manufacture or reproduce any Company product, service or technology or any material agreement, contract or commitment to sell or distribute any Company products, service or technology except agreements with distributors or sales representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Company or any of its subsidiaries or extension of credit (other than customer accounts receivable owing to Company or any of its subsidiaries in the ordinary course of business and payable or dischargeable in accordance with customary trade terms); (h) any material settlement agreement under which Company or any of its subsidiaries has ongoing obligations; (i) any other agreement, contract or commitment that calls for the payment or receipt by Company or any of its subsidiaries of $1,000,000 or more; (j) any agreement under which the consequences of a default could reasonably be expected to have a Material Adverse Effect on Company; or (k) any other agreement, contract or commitment that is of the nature required to be filed by Company as an exhibit to a Report on Form 10-K under the Exchange Act which has not already been filed. Company has delivered or made available to Parent a correct and complete copy of each Company Contract (as defined below) as amended to date. Each Company Contract, with respect to Company and any relevant subsidiary and, to Company's knowledge, all other parties thereto, is legal, valid, binding, enforceable and in full force and effect in all respects. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Contract (as defined below)Company Contract, is in breach, violation or default under, and neither Target under a Company Contract. Neither Company nor any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) within the last twelve months that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule pursuant to this Section 2.18 (any such agreement, contract or commitment, a "Target Company Contract") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, material damages or other remedies would be reasonably likely to have a Target Material Adverse Effect(for any or all of such breaches, violations or defaults, in the aggregate).

Agreements, Contracts and Commitments. As of the date of ------------------------------------- this Agreement, neither Target Neither Company nor any of its Subsidiaries subsidiaries is a party to or is bound by: (a) any employment or consulting agreement, contract or commitment with any officer or director or higher level employee or member of TargetCompany's Board of Directors, other than those that are terminable by Target Company or any of its Subsidiaries subsidiaries on no more than 30 days thirty (30) days' notice without liability or financial obligation, except obligation to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at willCompany; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license or purchase of software products or services in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effectbusiness; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right of Target Company or any of its Subsidiaries subsidiaries to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target Company or any of its Subsidiaries subsidiaries after the date of this Agreement of any a material amount of assets not in the ordinary course of business or pursuant to which Target Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than TargetCompany's Subsidiariessubsidiaries; (f) any dealer, distributor, joint marketing or development agreement currently in force under which Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less; (g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole; (h) any material agreement, contract or commitment, other than standard end-user license agreements and related maintenance and support agreements entered into in the ordinary course of business, currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Parent; (i) any mortgages, leases, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit; (j) any settlement agreement entered into within five (5) years prior to the date of this Agreement; or (k) any other agreement, contract or commitment that has a value of $250,000 or more individually. Neither Target Company nor any of its Subsidiariessubsidiaries, nor to TargetCompany's knowledge any other party to a Target Company Contract (as defined below), is in breach, violation or default under, and neither Target Company nor -19- 24 any of its Subsidiaries subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target Company or any of its Subsidiaries subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Company Schedule (any such agreement, contract or commitment, a "Target Company Contract") in such a manner as would permit any other party to cancel or terminate any such Target Company Contract, or would permit any other party reasonably be expected, either individually or in the aggregate, to seek damages or other remedies, which cancellation, termination, damages or other remedies would be reasonably likely to have result in a Target Material Adverse EffectEffect on Company.

Agreements, Contracts and Commitments. As Except for the Leases or the Units, all of which are listed on Exhibit “A,” the Company has listed in Schedule 4.7 all leases, contracts, agreements and instruments to which it is a party as of the date hereof (i) which is an employment agreement between the Company, on the one hand, and its officers and employees, on the other hand, (ii) which, upon Closing, will (either alone or upon the occurrence of ------------------------------------- this Agreementany additional acts or events, neither Target nor any including the passage of its Subsidiaries is a party to or is bound by: (atime) any employment or consulting agreement, contract or commitment with any officer or member of Target's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries on no more than 30 days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit Target's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license of software products in the ordinary course of business where such agreement or guarantee might reasonably result in a Target Material Adverse Effect; (c) any agreement, contract or commitment containing any covenant limiting in any material respect payment or benefit (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any right to any material payment or benefits, from Buyer or the Company to any officer, director, consultant or employee of Target the Company, (iii) which involves payment by or any to the Company of its Subsidiaries more than US$250,000 or extends for a term of six months or more, (iv) which expressly limits the ability of the Company to engage compete in or conduct any line of business or to compete with any person; or Person or in any geographic area or during any period of time, in each case, if such limitation is or is reasonably likely to be material to the Company, (dv) any which is a material joint venture agreement, joint operating agreement, partnership agreement or other similar contract or commitment currently in force relating to agreement involving a sharing of profits and expenses with one or more third Persons, (vi) the disposition benefits of which will be increased, or acquisition the vesting of the benefits of which will be accelerated, by Target or the occurrence of any of its Subsidiaries after the date 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 (including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan) or (vii) which is a limited liability operating agreement or equity holder rights agreement or which otherwise provides for the issuance of any securities in respect of this Agreement of any material assets (the “Material Contracts”). The Company has not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target nor any of its Subsidiariesbreached, nor to Target's knowledge the Company’s or Seller’s Knowledge is there any other claim or any legal basis for a claim that the Company or any third party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreementsMaterial Contract, contracts except where any such breach, whether considered individually or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreementaggregate, contract or commitment, a "Target Contract") in such a manner as would permit any other party to cancel or terminate any such Target Contract, or would permit any other party to seek damages or other remedies, which cancellation, termination, damages or other remedies would could not be reasonably likely expected to have result in a Target Material Adverse Effect.

Agreements, Contracts and Commitments. As Except as set forth in SCHEDULE 2.17, as of the date of ------------------------------------- this Agreementhereof, neither Target nor any of its Subsidiaries DSNC is not a party to, a party to whom a payment or an obligation is owed under, is not bound by, and none of its properties are subject to: (a) any employment or consulting agreement, contract or commitment with any officer officer, employee, consultant or member of TargetDSNC's Board of Directors, other than those that are terminable by Target or any of its Subsidiaries DSNC on no more than 30 thirty days notice without liability or financial obligation, except to the extent general principles of wrongful termination law may limit TargetDSNC's or any of its Subsidiaries' ability to terminate employees at will; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of indemnification the benefits of which will be increased, or the vesting of benefits of which will be accelerated, or pursuant to which any guaranty other than amounts may become payable (whether currently or in the future) to current or former employees, consultants, officers and directors of DSNC by the occurrence of any of the transactions contemplated by this Agreement, or the value of any of the benefits of which will be calculated on the basis of or in connection with any of the transactions contemplated by this Agreement; (c) any agreement of indemnification or guaranty not entered into in connection with the sale or license of software products in the ordinary course of business where such agreement other than indemnification agreements between DSNC and any of its officers or guarantee might reasonably result in a Target Material Adverse Effectdirectors; (cd) any agreement, contract or commitment containing any covenant limiting in any material respect the right freedom of Target or any of its Subsidiaries DSNC to engage in any line of business or to compete with any person; orperson or granting any exclusive distribution rights; (de) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Target or any of its Subsidiaries after the date of this Agreement of any material assets not in the ordinary course of business or pursuant to which Target has any ownership interest in any corporation, partnership, joint venture or other business enterprise other than Target's Subsidiaries. Neither Target nor enterprise; (f) any of its Subsidiaries, nor to Target's knowledge joint marketing or development agreement currently in force; (g) any other party to a Target Contract (as defined below), is in breach, violation or default under, and neither Target nor any of its Subsidiaries has received written notice (except for notices delivered prior to January 1, 1995 regarding matters which were subsequently resolved or are no longer pending) that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Target or any of its Subsidiaries is a party or by which it is bound that are required to be filed as an exhibit to a Target SEC Report or to be disclosed in the Target Disclosure Schedule (any such agreement, contract or commitmentcommitment currently in force to provide source code to any third party for any product or technology, a "Target Contract"except for (i) any agreement, contract or commitment pursuant to which source code is provided for maintenance of the source code or for development of modifications thereto only, and not for distribution of source or object code to third parties and (ii) any source code escrow agreement entered into in such a manner as would permit the ordinary course of business that contains provisions relating to the release of source code if DSNC ceases to do business or fails to provide appropriate maintenance; (h) any other agreement, contract or commitment currently in force to license any third party to cancel manufacture or terminate reproduce any such Target ContractDSNC product; (i) any continuing contract for the future purchase, sale or manufacture of products, material, supplies, equipment or services requiring payment to or from DSNC in an amount in excess of $25,000 per annum which is not terminable on 30 days' or less notice without cost or other liability at or at any time after the Effective Time or in which DSNC has granted or received manufacturing rights, or would permit most favored nation pricing provisions relating to any product, group of products or territory; (j) any contract providing for the development of software (other party to seek damages than contracts with consultants) for, or license of software to, DSNC, which software is used or incorporated in any DSNC Product (as defined in SECTION 2.26); (k) any indenture, mortgage, promissory note, loan agreement, guarantee or other remediesagreement or commitment for the borrowing of money, which cancellationfor a line of credit or for a leasing transaction of a type required to be capitalized in accordance with Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board; or (l) any written agreement regarding intercompany loans, terminationrevenue or cost sharing, damages ownership or other remedies would be reasonably likely to have a Target Material Adverse Effectlicense of DSNC IP Rights, intercompany royalties or dividends or similar matters.