Common use of Certain Contracts and Arrangements Clause in Contracts

Certain Contracts and Arrangements. (i) Schedule 3.1(v) of the Company Disclosure Schedule and the documents filed or incorporated by reference in the Company’s Annual Report on Form 10-K for the year ended December 31, 2004 set forth a true and complete list of each agreement to which the Company or any of the Subsidiaries is subject (other than this Agreement) that is of a type that would be required to be included as an exhibit to an Annual Report on Form 10-K pursuant to the rules and regulations of the SEC if such Annual Report on Form 10-K were filed by the Company on the date hereof (collectively, the “Company Contracts”). Except as could not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect and except as set forth on Schedule 3.1(v) of the Company Disclosure Schedule, neither the Company nor any of the Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. (ii) Set forth on Schedule 3.1(v) of the Company Disclosure Schedule is complete list of each management, employment, consulting or other agreement, contract or commitment, whether oral or in writing, to which the Company or any of the Subsidiaries is a party that provides for (i) the employment of any person or providing for retention of management, executive or consulting services, or (ii) the payment or accrual of any compensation or severance upon (A) a change in control of the Company or any of the Subsidiaries or (B) any termination of such management, employment, consulting or other relationship other than pursuant to an agreement with Parent or one of its current Affiliates. All compensation earned pursuant to the foregoing, including deferred compensation, has been fully and accurately accrued for and reflected in the financial statements included in the Company SEC Documents to the extent required therein. Set forth on Schedule 3.1(v) of the Company Disclosure Schedule is a list (including the name of the parties thereto and the date thereof) of all non-competition, non-solicitation or similar agreements entered into between any Person and the Company or any of the Subsidiaries that would (i) restrict any Person (other than the Company or any of the Subsidiaries) from engaging or competing in any line of business in any geographic area or from hiring or soliciting for hire any past or present employee, consultant, officer or director of the Company or any of the Subsidiaries or (ii) limits or otherwise restricts the Company or any of the Subsidiaries, or that would reasonably be expected to, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of Parent’s other subsidiaries or any of their respective affiliates or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic area.

Certain Contracts and Arrangements. (ia) Schedule 3.1(v) Section 3.14 of the Company Disclosure Schedule and the documents filed or incorporated by reference in the Company’s Annual Report on Form 10-K for the year ended December 31, 2004 set forth contains a true and complete list of each agreement the following types of contracts, agreements and commitments to which the Company or any of the its Subsidiaries is subject (other than this Agreement) that is a party as of a type that would be required to be included as an exhibit to an Annual Report on Form 10-K pursuant to the rules and regulations of the SEC if such Annual Report on Form 10-K were filed by the Company on the date hereof (collectivelysuch contracts, agreements and commitments as are required to be set forth in Section 3.14 of the “Company Contracts”Disclosure Schedule are referred to herein as "MATERIAL CONTRACTS"): (i) any agreement (A) relating to the employment of, or the performance of services by, any employee, consultant or other Person (other than ordinary course, at-will offer letters). Except as could not, individually (B) pursuant to which the Company or any of its Subsidiaries is or may become obligated to make any severance, termination or similar payment to any current or former employee or director, or (C) pursuant to which the Company or any of its Subsidiaries is or may become obligated to make any bonus or similar payment (sales commissions and similar payments made in the ordinary course of business consistent with past practice shall not be deemed to constitute a bonus or similar payment) to any current or former employee or director; (ii) any agreement relating to the acquisition, transfer, development, sharing or license of any Intellectual Property material to the Company's business (except for any Contract pursuant to which non-customized software is licensed to Company or any of its Subsidiaries under any third party software license generally available to the public, if such software is not incorporated into any product of the Company or any of its Subsidiaries or otherwise redistributed or sublicensed by the Company or any of its Subsidiaries); (iii) any agreement that provides for indemnification of any officer, director, employee or agent; (iv) any agreement imposing any material restriction on the right or ability of the Company or any of its Subsidiaries, or which, after consummation of the Offer or the Merger, would impose a restriction on the right or ability of Parent or any of its Subsidiaries (other than the Company and its Subsidiaries), to compete in any line of business or in any geographic region with any other Person or to transact business or deal in any other manner with any other Person; (v) any agreement (other than agreements evidencing Company Options) (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance, right of first refusal or similar right with respect to any securities, or (C) providing Company or any of its Subsidiaries with any right of first refusal or similar right with respect to, or right to repurchase or redeem, any securities; (vi) any agreement (A) to which any Governmental Entity is a party or under which any Governmental Entity has any rights or obligations, or (B) directly benefiting any Governmental Entity (including any subcontract or other agreement between Company or any of its Subsidiaries and any contractor or subcontractor to any Governmental Entity); (vii) any agreement that contemplates or involves the payment or delivery of cash or other consideration in an amount or having a value in excess of $25,000 in the aggregate, reasonably be expected or contemplates or involves the performance of services having a value in excess of $25,000 in the aggregate; (viii) any agreement pursuant to result which Company or any of its Subsidiaries distributes or sells any of its products, including distributor agreements and sales representative agreements and similar agreements but excluding those entered into in a Company Material Adverse Effect the ordinary course of business consistent with past practice and except as set forth cancelable without penalty on Schedule 3.1(vnotice of 30 days or fewer; (ix) any agreement pursuant to which another Person manufactures or supplies any products, or components thereof, of the Company Disclosure Scheduleor any of its Subsidiaries, but excluding those entered into in the ordinary course of business consistent with past practice and cancelable without penalty on notice of 30 days or fewer; (x) any agreement pursuant to which any Intellectual Property of Company or any of its Subsidiaries has been or is required to be placed into escrow for the benefit of any other Person; and (xi) any other contract, agreement or commitment that is material to the business of the Company and its Subsidiaries, taken as a whole. (b) Each Material Contract is in full force and effect and is a valid and binding obligation of the Company and, to the knowledge of the Company, the other parties thereto, and neither the Company nor any of the Subsidiaries is in breach or default under any Company Contract its Subsidiaries, nor, to the knowledge of the Company, is any other party to thereto, is in breach of, or default under, any such Company Contract in Material Contract, and no event has occurred that with notice or passage of time or both would constitute such a breach or default thereunder. (ii) Set forth on Schedule 3.1(v) of the Company Disclosure Schedule is complete list of each management, employment, consulting or other agreement, contract or commitment, whether oral or in writing, to which thereunder by the Company or any of its Subsidiaries, or, to the Subsidiaries is a party that provides for (i) the employment of any person or providing for retention of management, executive or consulting services, or (ii) the payment or accrual of any compensation or severance upon (A) a change in control knowledge of the Company or Company, any of the Subsidiaries or (B) any termination of other party thereto, except for such managementfailures to be in full force and effect and such breaches and defaults which, employment, consulting or other relationship other than pursuant to an agreement with Parent or one of its current Affiliates. All compensation earned pursuant to the foregoing, including deferred compensation, has been fully and accurately accrued for and reflected in the financial statements included in the Company SEC Documents to the extent required therein. Set forth on Schedule 3.1(v) of the Company Disclosure Schedule is a list (including the name of the parties thereto and the date thereof) of all non-competitionaggregate, non-solicitation or similar agreements entered into between any Person and the Company or any of the Subsidiaries that would (i) restrict any Person (other than the Company or any of the Subsidiaries) from engaging or competing in any line of business in any geographic area or from hiring or soliciting for hire any past or present employee, consultant, officer or director of the Company or any of the Subsidiaries or (ii) limits or otherwise restricts the Company or any of the Subsidiaries, or that would not reasonably be expected toto have a Company Material Adverse Effect. Consummation of the transactions contemplated by this Agreement will not, after by the Effective Timeterms of any Material Contract, limit result in termination of any such Material Contract, give rise to a termination right under any such Material Contract, require any third-party consent or restrict Parent, the Surviving Corporation or any result in a payment in excess of Parent’s other subsidiaries or any of their respective affiliates or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic area$25,000.

Certain Contracts and Arrangements. (i) Schedule 3.1(v) of the Company Disclosure Schedule and the documents filed Each material contract or incorporated by reference in the Company’s Annual Report on Form 10-K for the year ended December 31, 2004 set forth a true and complete list of each agreement to which the Company or any of the its Subsidiaries is subject (other than this Agreement) that a party or by which any of them is bound is in full force and effect, and neither the Company nor any of a type that would be required to be included as an exhibit to an Annual Report on Form 10-K pursuant its Subsidiaries, nor, to the rules and regulations knowledge of the SEC if Company, any other party thereto, is in breach of, or default under, any such Annual Report on Form 10-K were filed contract or agreement, and no event has occurred that with notice or passage of time or both would constitute such a breach or default thereunder by the Company on or any of its Subsidiaries, or, to the date hereof knowledge of the Company, any other party thereto, except for such failures to be in full force and effect and such breaches and defaults which, in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Section 3.15 of the Company Disclosure Schedule lists each material contract or agreement to which the Company or any of its Subsidiaries is a party or by which any of them is bound (collectivelyeach, the “a "Company Contracts”Material Contract"). Except Each Company Material Contract that has not expired by its terms is in full force and effect and is the legal, valid and binding obligation of the Company and/or its applicable Subsidiary, enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors rights and remedies generally and subject, as could to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), except where the failure of such Company Material Contract to be in full force and effect or to be legal, valid, binding or enforceable against the Company and/or the applicable Subsidiary has not had and would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect and except Effect. Except as set forth on Schedule 3.1(v) in Section 3.15 of the Company Disclosure Schedule, neither the no consent, approval, waiver or authorization of, or notice to any Person is needed in order that each such Company nor any Material Contract shall continue in full force and effect in accordance with its terms without penalty, acceleration or rights of early termination by reason of the Subsidiaries is in breach or default under any Company Contract nor, to the knowledge consummation of the CompanyTender Offer, is any other party to any such Company Contract in breach or default thereunder. (ii) Set forth on Schedule 3.1(v) of the Company Disclosure Schedule is complete list of each management, employment, consulting or other agreement, contract or commitment, whether oral or in writing, to which the Company or any of the Subsidiaries is a party that provides for (i) the employment of any person or providing for retention of management, executive or consulting services, or (ii) the payment or accrual of any compensation or severance upon (A) a change in control of the Company or any of the Subsidiaries or (B) any termination of such management, employment, consulting or other relationship other than pursuant to an agreement with Parent or one of its current Affiliates. All compensation earned pursuant to the foregoing, including deferred compensation, has been fully and accurately accrued for and reflected in the financial statements included in the Company SEC Documents to the extent required therein. Set forth on Schedule 3.1(v) of the Company Disclosure Schedule is a list (including the name of the parties thereto Merger and the date thereof) of all non-competition, non-solicitation or similar agreements entered into between any Person and the Company or any of the Subsidiaries that would (i) restrict any Person (other than the Company or any of the Subsidiaries) from engaging or competing in any line of business in any geographic area or from hiring or soliciting for hire any past or present employee, consultant, officer or director of the Company or any of the Subsidiaries or (ii) limits or otherwise restricts the Company or any of the Subsidiaries, or that would reasonably be expected to, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of Parent’s other subsidiaries or any of their respective affiliates or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic areatransactions contemplated by this Agreement.

Certain Contracts and Arrangements. Set forth in Section 5.14 of the Disclosure Schedule, is a list, identifying the parties thereto of the following Contracts included in the Purchased Assets or to which either of the Companies is a party and which in either case is in effect as of the date hereof. The list is representative of the type of Contracts listed below. These and other Contracts were made available for Buyer’s inspection. All are not listed in the Disclosure Schedule due to the number of such Contracts: (a) employment agreement; (b) sales representative, agency, distributor, or franchise agreement; (c) indenture, mortgage, note, installment obligation, agreement or other instrument relating to the borrowing of money by Seller or a Company, or the guaranty by Seller or a Company of any obligation for the borrowing of money; (d) indemnity or power of attorney involving outstanding, contingent or continuing obligation of or to Seller or either Company; (e) agreement with or to any director, officer, shareholder, manager or member of Seller or a Company or any Affiliate of any such Person; and, (f) other Contracts for the furnishing of services, goods or products by or to Seller or a Company after the date hereof with firm commitments having a value in excess of $250,000 on an annual basis. To the knowledge of Seller, the online data room includes a true copy of the Contracts which, in the opinion of those representing knowledge of the Seller (i.e. Schedule 1.1(c)(i)), may be material to the Business on the Closing Date. The online data room also includes a true copy of the following documents: (i) Schedule 3.1(vContracts containing a provision, covenant or obligation limiting or restricting in any manner whatsoever (whether during any particular period of time from and after the Closing Date, in certain geographic areas or otherwise) the ability of the Company Disclosure Schedule and the documents filed or incorporated by reference in the Company’s Annual Report on Form 10-K for the year ended December 31, 2004 set forth a true and complete list of each agreement to which the Company or any of the Subsidiaries is subject Seller or either Company to engage in any line of business, to sell any products or services to or to compete with any Person, or to obtain products or services from any Person; (ii) Contracts containing covenants (other than this Agreementcovenants granted pursuant to Contracts entered into in the ordinary course of Seller’s business with customers of the Business) that is prohibit or prevent the Seller or either Company from hiring or soliciting any Person for employment for a period in excess of six months after the Closing Date; (iii) all Transferred Contracts that require the Seller or either Company to provide any Products or any other goods or services to any Person at (or calculated as a type that would percentage of or otherwise directly based upon) the lowest, best or most favorable price (or otherwise upon the best or most favorable terms) provided to any other Person. To the knowledge of Seller, all such agreements are in full force and effect and are valid, binding and enforceable in accordance with their terms, except to the extent that: (x) such enforcement may be required subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, relating to or limiting creditors’ rights generally; (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought; or (z) such failure to be included as an exhibit to an Annual Report on Form 10-K pursuant to the rules valid, binding and regulations of the SEC if such Annual Report on Form 10-K were filed by the Company on the date hereof (collectively, the “Company Contracts”). Except as could notenforceable, individually or in the aggregate, reasonably be expected to result in would not have a Company Material Adverse Effect and except as set forth on Schedule 3.1(v) Effect. To the knowledge of the Company Disclosure ScheduleSeller, neither the Company nor none of Seller Company, or any other party to any of the Subsidiaries aforesaid Contracts, is in material breach or default under such agreements and no event, condition or occurrence exists which after notice or lapse of time, or both, would constitute a material breach or default under any Company Contract nor, to such Contract. To the knowledge of Seller, there are no oral Contracts in the Company, is any other party Transferred Contracts that are material to any such Company Contract in breach the Business or default thereunder. (ii) Set forth on Schedule 3.1(v) of the Company Disclosure Schedule is complete list of each management, employment, consulting or other agreement, contract or commitment, whether oral or in writing, to which the Company or any of the Subsidiaries is a party that provides for (i) the employment of any person or providing for retention of management, executive or consulting services, or (ii) the payment or accrual of any compensation or severance upon (A) a change in control of the Company or any of the Subsidiaries or (B) any termination of such management, employment, consulting or other relationship other than pursuant to an agreement with Parent or one of its current AffiliatesPurchased Assets. All compensation earned pursuant to Without modifying the foregoing, including deferred compensation, has been fully and accurately accrued for and reflected in Seller makes no representation or warranty regarding the financial statements included in the Company SEC Documents to the extent required therein. Set forth on Schedule 3.1(v) completeness of the Company Disclosure Schedule is a list (including the name of the parties thereto and the date thereof) of all non-competition, non-solicitation or similar agreements entered into between any Person and the Company or any of the Subsidiaries that would (i) restrict any Person (other than the Company or any of the Subsidiaries) from engaging or competing in any line of business in any geographic area or from hiring or soliciting for hire any past or present employee, consultant, officer or director of the Company or any of the Subsidiaries or (ii) limits or otherwise restricts the Company or any of the Subsidiaries, or that would reasonably be expected to, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of Parent’s other subsidiaries or any of their respective affiliates or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic areaonline data room.

Certain Contracts and Arrangements. Except for ---------------------------------- Government Contracts (ias defined below) Schedule 3.1(v) and as set forth in Section 2.16 of the Disclosure Schedule, as of the date hereof, neither the U.S. Company Disclosure Schedule nor any of its Subsidiaries is a party to any written (a) employment agreement; (b) indenture, mortgage, note, agreement or other instrument relating to the borrowing of money by the U.S. Company or any of its Subsidiaries, as the case may be (other than intercompany accounts which shall be governed by Section 1.8 hereof), or the guaranty by either of the U.S. Company or any of its Subsidiaries of any obligation for the borrowing of money; (c) agreement or contract the loss of which would have a Company Material Adverse Effect;(d) contract or agreement that has or is expected to generate at least $1,000,000 in revenue (including unexercised options) to the U.S. Company and the documents filed or incorporated by reference in the Company’s Annual Report on Form 10-K its Subsidiaries for the year ended December 31, 2004 set forth a true 1997; (e) contracts or agreements (excluding supplier contracts and complete list agreements) having an unexpired term as of each agreement to which the date hereof (including unexercised options) in excess of two years; (f) contracts or agree- ments limiting or restricting the ability of the U.S. Company or any of its Subsidiaries to compete or otherwise to conduct any business in any manner or place; (g) grants of power of attorney, agency or similar authority to another person or entity; (h) contracts or agreements containing a right of first refusal; (i) contract or agreement to which any affiliate, officer or director of the Parent, the Sellers, the U.S. Company or its Subsidiaries is subject party; and (other than this Agreementj) that is contract or agreement not made in the ordinary course of a type that would be required to be included as an exhibit to an Annual Report on Form 10-K pursuant to the rules and regulations of the SEC if such Annual Report on Form 10-K were filed by the Company on the date hereof business (collectively, the “Company "Material Contracts”"). Except All of the Material Contracts are valid, binding and enforceable obligations of the U.S. Company or its Subsidiaries, as could the case may be, in accordance with their terms. Neither the U.S. Company nor one of its Subsidiaries, as the case may be, nor, to the knowledge of the Parent, any other party thereto (i) is in default under any of the aforesaid agreements, other than such defaults, if any, which would not, individually or in the aggregate, reasonably be expected to result in have a Company Material Adverse Effect and except as set forth on Schedule 3.1(vor (ii) of the Company Disclosure Schedule, neither the Company nor has waived any of the Subsidiaries is in breach or default material rights under any Company Material Contract nor, to (other than releases executed in the ordinary course of business in connection with closing contracts or task orders). To the knowledge of the CompanyParent, is any other party to any such Company Contract in breach there are no written agreements or default thereunder. (ii) Set forth on Schedule 3.1(v) of the Company Disclosure Schedule is complete list of each management, employment, consulting or other agreement, contract or commitment, whether oral or in writing, contracts to which the U.S. Company or any of the its Subsidiaries is a party that provides for (i) or by which any of their properties is bound with respect to which a "show cause" notice, a cure notice or a default notice has been received or is threatened to be sent to the employment of any person or providing for retention of management, executive or consulting services, or (ii) the payment or accrual of any compensation or severance upon (A) a change in control of the U.S. Company or any of the Subsidiaries or (B) any termination of such management, employment, consulting or other relationship other than pursuant to an agreement with Parent or one of its current Affiliates. All compensation earned pursuant to the foregoing, including deferred compensation, has been fully and accurately accrued for and reflected in the financial statements included in the Company SEC Documents to the extent required therein. Set forth on Schedule 3.1(v) of the Company Disclosure Schedule is a list (including the name of the parties thereto and the date thereof) of all non-competition, non-solicitation or similar agreements entered into between any Person and the Company or any of the Subsidiaries that would (i) restrict any Person (other than the Company or any of the Subsidiaries) from engaging or competing in any line of business in any geographic area or from hiring or soliciting for hire any past or present employee, consultant, officer or director of the Company or any of the Subsidiaries or (ii) limits or otherwise restricts the Company or any of the Subsidiaries, or that would reasonably be expected to, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of Parent’s other subsidiaries or any of their respective affiliates or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic area.

Certain Contracts and Arrangements. The Company has not breached or defaulted (i) Schedule 3.1(v) nor has any event occurred which, with passage of time or giving of notice would constitute a default), or received in writing any claim or notice that it has breached or defaulted under, any of the terms or conditions of any agreement, contract or commitment in such a manner as, individually or in the aggregate, are reasonably likely to have a Company Material Adverse Effect. In addition, the Company has used reasonable best efforts to identify and disclose on Section 3.13 of the Company Disclosure Schedule and all of the documents filed or incorporated by reference in the Company’s Annual Report on Form 10-K for the year ended December 31, 2004 set forth a true and complete list of each agreement following to which the Company or any of the its Subsidiaries is subject a party (and which are not listed as exhibits to the Company's 10-K): (a) material employment, consulting, noncompete, severance or similar agreement with any director, officer or salaried employee; (b) collective bargaining agreement; (c) material indenture, mortgage, note, installment obligation, agreement or other instrument relating to the borrowing of money by the Company or any Subsidiary or the guaranty by the Company or any Subsidiary of any material obligation for the borrowing of money; (d) real property lease in excess of 20,000 square feet and any other material lease (i.e., a lease (other than this Agreement) leases that is of a type that would be required to be included as an exhibit to an Annual Report on Form 10-K pursuant to the rules and regulations of the SEC if such Annual Report on Form 10-K were filed have been properly capitalized by the Company on in accordance with GAAP) with future yearly rental payments in excess of $150,000 or aggregate future rental payments in excess of $500,000 over the date hereof term thereof); (collectively, the “Company Contracts”). Except as could not, individually e) any non-competition agreement or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect and except as set forth on Schedule 3.1(v) of the Company Disclosure Schedule, neither the Company nor any of the Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party agreement or obligation which purports to limit in any such Company Contract material respect the manner in breach which, or default thereunder. (ii) Set forth on Schedule 3.1(v) of the Company Disclosure Schedule is complete list of each managementlocalities in which, employment, consulting or other agreement, contract or commitment, whether oral or in writing, to which the Company or any of the its Subsidiaries is entitled to conduct all or any material portion of the business of the Company and its Subsidiaries taken as a party that provides whole; (f) any joint venture, partnership or similar arrangement extending beyond six (6) months or involving a commitment for future equity or investment of more than $500,000; (g) a listing of the top fifty (50) customers based on estimated annual revenue, including a listing of the contracts in place with the top ten (10) customers; (h) a listing of the vendors with whom the Company has contracts involving purchases in excess of $500,000 on an annualized basis, including a listing of the contracts in place with the top ten (10) vendors; (i) any material agreement the employment benefits of which are contingent or increased, or the terms of which are materially altered, or the vesting of benefits of which will be accelerated, upon the occurrence of a transaction of the nature contemplated by this Agreement or the value of any person of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (j) any material agreement of indemnification or providing for retention guaranty not entered into in the ordinary course of managementbusiness; (k) any agreement, executive capitalized lease, contract or consulting servicescommitment relating to capital expenditures and involving future obligations in excess of $1,500,000, and not cancelable without penalty; (l) any agreement, contract or commitment currently in force relating to any ownership interest in any corporation, partnership, joint venture or other business enterprise that is material in value to the Company; or (iim) the payment any other contract or accrual of any compensation or severance upon (A) a change in control of agreement that is otherwise material to the Company or any of the Subsidiaries or (B) any termination of such managementtaken as a whole, employment, consulting or other relationship other than pursuant to an agreement with Parent or one of its current Affiliates. All compensation earned pursuant to the foregoing, including deferred compensation, has been fully except for purchase and accurately accrued for sales orders and reflected similar contracts entered into in the financial statements included in the Company SEC Documents to the extent required therein. Set forth on Schedule 3.1(v) ordinary course of the Company Disclosure Schedule is a list (including the name of the parties thereto and the date thereof) of all non-competition, non-solicitation or similar agreements entered into between any Person and the Company or any of the Subsidiaries that would (i) restrict any Person (other than the Company or any of the Subsidiaries) from engaging or competing in any line of business in any geographic area or from hiring or soliciting for hire any past or present employee, consultant, officer or director of the Company or any of the Subsidiaries or (ii) limits or otherwise restricts the Company or any of the Subsidiaries, or that would reasonably be expected to, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of Parent’s other subsidiaries or any of their respective affiliates or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic areabusiness.

Certain Contracts and Arrangements. (i) Schedule 3.1(v) 3.15 of the Company Disclosure Schedule lists, and the documents filed Company has heretofore furnished to Parent complete and accurate copies of (or, if oral, the Company Disclosure Schedule states all material provisions of), (a) every employment, material consulting, severance or incorporated change of control agreement or arrangement for the benefit of any director, officer, employee, other person or stockholder of the Company or any Subsidiary of the Company or any affiliate thereof in effect as of the date of this Agreement to which the Company or any Subsidiary of the Company is a party or by reference which the Company or any Subsidiary of the Company or any of their properties or assets is bound, (b) every material contract with physicians, scientific advisory board members or material consultants in A-15 16 effect as of the date of this Agreement to which the Company or any Subsidiary of the Company is a party or by which the Company or any Subsidiary of the Company or any of their properties or assets is bound, and (c) every contract, agreement, or understanding to which the Company or any Subsidiary of the Company is a party that would reasonably be expected to involve payments by or to the Company or any Subsidiary of the Company in excess of $500,000 during the Company's current 2001 fiscal year, or the absence or performance of which could reasonably be expected to have, individually or in the Company’s Annual Report on Form 10-K for aggregate, a Company Material Adverse Effect, or that is material and was not made in the year ended December 31, 2004 set forth a true and complete list ordinary course of each business. Each material contract or agreement to which the Company or any of the Subsidiaries is subject (other than this Agreement) that is of a type that would be required to be included as an exhibit to an Annual Report on Form 10-K pursuant to the rules and regulations of the SEC if such Annual Report on Form 10-K were filed by the Company on the date hereof (collectively, the “Company Contracts”). Except as could not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect and except as set forth on Schedule 3.1(v) Subsidiary of the Company Disclosure Scheduleis a party or by which any of them is bound is in full force and effect, and neither the Company nor any Subsidiary of the Subsidiaries is in breach or default under any Company Contract Company, nor, to the knowledge of the Company, is any other party to any such Company Contract thereto, is in breach of, or default thereunder. (ii) Set forth on Schedule 3.1(v) of the Company Disclosure Schedule is complete list of each managementunder, employment, consulting or other agreement, any material contract or commitment, whether oral or in writing, material agreement to which the Company or any Subsidiary of the Subsidiaries Company is a party or by which any of them is bound, and no event has occurred that provides with notice or passage of time or both would constitute such a breach or default thereunder by the Company or any Subsidiary of the Company, or, to the knowledge of the Company, any other party thereto, except for such breaches and defaults which could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. As of the date of this Agreement, neither the Company nor any Subsidiary of the Company is a party to any contract, plan, agreement, understanding, arrangement or obligation (i) that restricts the employment of any person or providing for retention of management, executive or consulting services, or (ii) the payment or accrual of any compensation or severance upon (A) a change in control ability of the Company or any Subsidiary of the Subsidiaries Company, or after the Merger would restrict the Surviving Corporation's or Parent's ability, to conduct any line of business, (Bii) any termination of such management, employment, consulting or other relationship other than pursuant to an agreement with Parent or one of its current Affiliates. All compensation earned pursuant to the foregoing, including deferred compensation, has been fully and accurately accrued for and reflected in the financial statements included in the Company SEC Documents to the extent required therein. Set forth that imposes on Schedule 3.1(v) of the Company Disclosure Schedule is a list (including the name of the parties thereto and the date thereof) of all non-competition, non-solicitation or similar agreements entered into between any Person and the Company or any of the Subsidiaries that would (i) restrict any Person (other than the Company or any of the Subsidiaries) from engaging or competing in any line of business in any geographic area or from hiring or soliciting for hire any past or present employee, consultant, officer or director Subsidiary of the Company material obligations (including to pay material milestone payments or any material license fees) not reflected in the Company Audited Balance Sheet, or (iii) that would be required to be filed with the SEC in a filing to which paragraph (b)(10) of Item 601 of Regulation S-K of the Subsidiaries or (ii) limits or otherwise restricts the Company or any Rules and Regulations of the SubsidiariesSEC is applicable, or that would reasonably be expected to, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of Parent’s other subsidiaries or any of their respective affiliates or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic areahas not been so filed.

Certain Contracts and Arrangements. Schedule 3.14(a) sets forth a true, complete and correct list of all Contracts (other than any Employee Benefit Program), including all amendments and supplements thereto, to which, as of the date hereof, the Company or any of its Subsidiaries is a party and under which there are ongoing obligations (other than customary confidentiality obligations) meeting any of the descriptions set forth below (collectively referred to herein as the “Significant Contracts”): (a) any Contract with any Significant Customer; (b) all employment agreements with any officers, directors or employees of the Company or any Subsidiary pursuant to which the annual base salary for an employee is greater than $75,000, or that are not “at will” agreements or require the Company to make a severance payment to the employee upon its termination; (c) all personal property leases that, in accordance with their terms, involve aggregate payments by the Company and its Subsidiaries of more than $75,000 within the 12-month period ended on the Balance Sheet Date; (d) all Contracts granting a right of first refusal, right of first negotiation, license, or covenant not to ▇▇▇, to the Company or any of its Subsidiaries of Intellectual Property Assets that are material to the conduct of the Company’s or any Subsidiaries’ business as currently conducted (other than Contracts (i) Schedule 3.1(vrelating to Off-The-Shelf Software, (ii) relating to Open Source Code or (iii) rights granted to the Company and its Subsidiaries by employees and contractors in confidentiality or invention assignment agreements under Intellectual Property Assets that (A) could not be assigned to the Company or its Subsidiaries under applicable Law or (B) pre-existed the date of the Company Disclosure Schedule and the documents filed or incorporated by reference in the Company’s Annual Report on Form 10-K for the year ended December 31, 2004 set forth a true and complete list of each agreement to agreement); (e) all Contracts under which the Company or any of the its Subsidiaries is subject granted any Person a right of first refusal, right of first negotiation, license or covenant not to ▇▇▇ under or with respect to any Company Owned Intellectual Property Asset (other than this Agreement(i) that is of a type that would be required Contracts relating to be included as an exhibit to an Annual Report on Form 10non-K disclosure and confidentiality agreements pursuant to which a third party is authorized to use the rules and regulations Company’s or any of the SEC if such Annual Report on Form 10its Subsidiaries’ confidential information for a limited, non-K were filed commercial purpose or (ii) non-exclusive licenses granted by the Company on or any of its Subsidiaries to its and their customers entered into in the date hereof ordinary course of business ); (collectivelyf) all business associate agreements or similar Contracts with or related to a Significant Customer involving Personal Information; (g) all Contracts (other than Real Property Leases) under which the Company or any of its Subsidiaries have created, incurred, assumed, or guaranteed any Company Debt; (h) Contracts for the “sale of any material amount of assets of the Company Contracts”)or any of its Subsidiaries other than in the ordinary course of business; (i) Contracts containing covenants of the Company or any of its Subsidiaries not to compete in any line of business or in any geographical area in any material respect; (j) Contracts relating to the acquisition or disposition (by merger, purchase of stock or assets or otherwise) by the Company or any of its Subsidiaries of any operating business or material assets or the capital stock or equity interests of any other Person; (k) any partnership, joint venture or other similar Contract; and (l) Contracts with customers containing most-favored nations clauses as to price. Except as could not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect and except as set forth on Schedule 3.1(v3.14(b), (A) none of the Company Disclosure Schedule, neither the Company nor or any of the its Subsidiaries is in material breach of, or in material default under under, any Company Contract Significant Contract, nor, to the knowledge Knowledge of the Company, is any other party to any such Company Significant Contract in material breach of, or material default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or material default thereunder. (ii) Set forth on Schedule 3.1(v) by the Company, any of its Subsidiaries or, to the Knowledge of the Company Disclosure Schedule is complete list of Company, any other party thereunder; (B) each management, employment, consulting or other agreement, contract or commitment, whether oral or in writing, to which the Company or any of the Subsidiaries Significant Contracts is a party that provides for (i) in full force and effect and is the employment legal, valid and binding obligation of any person or providing for retention of management, executive or consulting services, or (ii) the payment or accrual of any compensation or severance upon (A) a change in control either of the Company or one of its Subsidiaries that is a party thereto and, to the Knowledge of the Company, the other parties thereto and enforceable in accordance with its terms, except to the extent that enforceability may be limited by the Remedies Exceptions; (C) as of the date hereof, no party to any of the Subsidiaries or (B) Significant Contracts has exercised any termination of such management, employment, consulting or other relationship other than pursuant to an agreement rights with Parent or one of its current Affiliates. All compensation earned pursuant to the foregoing, including deferred compensation, has been fully respect thereto; and accurately accrued for and reflected in the financial statements included in (D) the Company SEC Documents has made available, or caused to the extent required therein. Set forth on Schedule 3.1(v) be made available, to Parent true, correct and complete copies of all of the Company Disclosure Schedule is a list (including the name Significant Contracts, together with all material amendments, modifications or supplements thereto as of the parties thereto and the date thereof) of all non-competition, non-solicitation or similar agreements entered into between any Person and the Company or any of the Subsidiaries that would (i) restrict any Person (other than the Company or any of the Subsidiaries) from engaging or competing in any line of business in any geographic area or from hiring or soliciting for hire any past or present employee, consultant, officer or director of the Company or any of the Subsidiaries or (ii) limits or otherwise restricts the Company or any of the Subsidiaries, or that would reasonably be expected to, after the Effective Time, limit or restrict Parent, the Surviving Corporation or any of Parent’s other subsidiaries or any of their respective affiliates or any successor thereto, from engaging or competing in any line of business in which it is currently engaged or in any geographic areahereof.