PERSONNEL AND OTHER CONTRACTS WITH PRESENT OR FORMER OFFICERS
OR DIRECTORS OF SELLER OR (B) THAT WILL RESULT IN THE PAYMENT BY, OR THE
CREATION OF ANY LIABILITY OF PURCHASER TO PAY ANY SEVERANCE, TERMINATION,
"GOLDEN PARACHUTE," OR OTHER SIMILAR PAYMENTS TO ANY PRESENT OR FORMER PERSONNEL
FOLLOWING TERMINATION OF EMPLOYMENT OR OTHERWISE AS A RESULT OF THE CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT;
(VII)
INDEMNIFICATION AGREEMENTS;
(VIII)
PROMISSORY NOTES, LOANS, AGREEMENTS, INDENTURES, EVIDENCES OF
INDEBTEDNESS, LETTERS OF CREDIT, GUARANTEES, OR OTHER INSTRUMENTS RELATING TO AN
OBLIGATION TO PAY MONEY,
20
WHETHER SELLER SHALL BE THE BORROWER, LENDER OR GUARANTOR THEREUNDER AND RELATED
TO ANY LIEN ON ANY TRANSFERRED ASSETS (EXCLUDING CREDIT PROVIDED BY SELLER IN
THE ORDINARY COURSE OF BUSINESS TO BUYERS OF ITS PRODUCTS AND OBLIGATIONS TO PAY
VENDORS IN THE ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST PRACTICE);
(IX)
CONTRACTS CONTAINING COVENANTS LIMITING THE FREEDOM OF SELLER OR
AFFILIATE OF SELLER TO ENGAGE IN ANY LINE OF BUSINESS OR COMPETE WITH ANY PERSON
THAT RELATES DIRECTLY OR INDIRECTLY TO THE BUSINESS OR THE TRANSFERRED ASSETS;
(X)
ANY CONTRACT WITH THE FEDERAL, STATE OR LOCAL GOVERNMENT OR ANY
AGENCY OR DEPARTMENT THEREOF;
(XI)
ANY CONTRACT OR OTHER ARRANGEMENT WITH A RELATED PARTY (EXCLUDING
PAYMENTS TO SHAREHOLDERS AS SUCH);
(XII)
LEASES OF REAL OR PERSONAL PROPERTY INVOLVING ANNUAL PAYMENTS OF
MORE THAN $25,000; AND
(XIII)
ANY OTHER CONTRACT UNDER WHICH THE CONSEQUENCES OF A DEFAULT OR
TERMINATION WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT,
INDIVIDUALLY OR IN THE AGGREGATE.
Complete and accurate copies of all of the Contracts listed in Section 3.6(a) of
the Disclosure Schedule, including all amendments and supplements thereto, have
been, or will no later than December 8, 2006 be, delivered to Purchaser, with
the exception of Contracts the existence of which cannot be disclosed without a
waiver of a confidentiality agreement, consisting of three contracts for goods
or services that are generally commercially available without the payment of a
significant advance license or set-up fee.
Seller shall use it reasonable best
efforts to obtain consent to disclose such contracts to Purchaser as soon as
practicable after the execution of this Agreement.
(B)
ABSENCE OF DEFAULTS.
EXCEPT AS SET FORTH IN SECTION 3.6(B) OF THE
DISCLOSURE SCHEDULE (WHICH MAY BE UPDATED UP TO DECEMBER 15, 2006), ALL OF THE
MATERIAL CONTRACTS ARE VALID AND BINDING OBLIGATIONS OF SELLER AND ENFORCEABLE
AGAINST SELLER AND, TO SELLER'S KNOWLEDGE, THE OTHER PARTIES THERETO IN
ACCORDANCE WITH THEIR TERMS (EXCEPT THAT ENFORCEABILITY MAY BE LIMITED BY THE
EFFECT OF (I) BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER
SIMILAR LEGAL REQUIREMENTS RELATING TO OR AFFECTING THE RIGHTS OF CREDITORS OR
(II) GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER ENFORCEABILITY IS
CONSIDERED IN A PROCEEDING AT LAW OR IN EQUITY) WITH NO EXISTING OR, TO SELLER'S
KNOWLEDGE, THREATENED DEFAULT OR DISPUTE BY SELLER OR, TO SELLER'S KNOWLEDGE,
ANY OTHER PARTY THERETO.
SELLER HAS FULFILLED, OR TAKEN ALL ACTION NECESSARY TO
ENABLE IT TO FULFILL WHEN DUE, ALL