BY SELLER OR ANY OF ITS AFFILIATES
WITH RESPECT TO ANY ACQUIRED ASSET ACCRUING PRIOR TO THE CLOSING DATE, AND
SELLER AGREES TO PAY, WHEN AND AS DUE, ALL AMOUNTS DUE AND PAYABLE BY SELLER OR
ANY OF ITS AFFILIATES WITH RESPECT TO ANY ACQUIRED ASSET ACCRUING PRIOR TO THE
CLOSING DATE, INCLUDING WITHOUT LIMITATION:
(I)
ANY CONTRACT WITH ANY LABOR UNION OR ANY BONUS, PENSION, PROFIT
SHARING, RETIREMENT OR ANY OTHER FORM OF DEFERRED COMPENSATION PLAN OR ANY STOCK
PURCHASE, STOCK OPTION OR SIMILAR PLAN;
(II)
ANY MANAGEMENT AGREEMENT OR CONTRACT FOR THE EMPLOYMENT OF ANY
OFFICER, PARTNER, INDIVIDUAL EMPLOYEE OR OTHER PERSON;
(III)
ANY AGREEMENT OR INDENTURE (INCLUDING WITH ANY LENDER) RELATING TO
INDEBTEDNESS OR TO PLACING A LIEN ON ANY ACQUIRED ASSET; AND
(IV)
ANY LEASE OR LICENSE AGREEMENT UNDER WHICH SELLER IS LESSOR OR
LICENSOR OF ANY ACQUIRED ASSET.
PAGE 15
(B)
EXCEPT AS DISCLOSED IN SCHEDULE 4.12(B) OR AS PROVIDED IN THIS AGREEMENT,
THERE ARE NO CONTRACTS OR AGREEMENTS ENTERED INTO BY SELLER OR ANY OF ITS
AFFILIATES, WHETHER FORMAL OR INFORMAL, WRITTEN OR ORAL, CURRENTLY IN EFFECT, OR
WITH ANY REMAINING OBLIGATIONS TO SELLER OF ANY KIND:
(I)
WHICH PROHIBITS SELLER FROM FREELY ENGAGING IN BUSINESS RELATING TO
ANY ACQUIRED ASSETS ANYWHERE IN THE WORLD;
(II)
RELATING TO THE MARKETING, SALE, DISTRIBUTION, PRODUCTION,
ADVERTISING OR PROMOTION OF ANY ACQUIRED ASSET;
(III)
UNDER WHICH SELLER IS OBLIGATED TO INDEMNIFY ANY THIRD PARTY AGAINST
ANY PRODUCT WARRANTY, INFRINGEMENT OR SIMILAR CLAIMS;
(IV)
RELATING TO OR CONSTITUTING A POWER OF ATTORNEY EXECUTED BY OR ON
BEHALF OF SELLER RELATING TO ANY ACQUIRED ASSET;
(V)
THAT CREATES ANY EXISTING OR FUTURE, OR POTENTIAL INDEBTEDNESS OF
SELLER ON AN ACQUIRED ASSET (INCLUDING ANY INDEBTEDNESS TO ANY LENDER);
(VI)
WITH TCS, SUZO HAPP, TEN STIX OR ANY OF THEIR RESPECTIVE SUBSIDIARIES
OR AFFILIATES, OR ANY DISTRIBUTOR, REPRESENTATIVE OR AGENT WITH RESPECT TO ANY
OF THE PRODUCTS;
(VII)
WHICH ALLOWS OR GRANTS ANY RIGHTS TO ANY PERSON FOR THE MANUFACTURE,
MARKETING, SALE, DISTRIBUTION, PRODUCTION, ADVERTISING OR PROMOTION OF ANY
ACQUIRED ASSET;
(VIII)
WHICH CREATES ANY JOINT VENTURE OR PARTNERSHIP REGARDING ANY ACQUIRED
ASSET;
(IX)
WHICH AFFECTS SELLER'S LEGAL TITLE IN THE SHUFFLER AND DECKCHECKER
INTELLECTUAL PROPERTY;
(X)
WHICH IS A BETA TEST AGREEMENT; OR
(XI)
WHICH RELATES TO THE RESEARCH AND DEVELOPMENT OF ANY ACQUIRED ASSET.
(c)
Except as disclosed in Schedule 4.12(c), with respect to any Acquired
Asset:
(i)
no contract or commitment has been breached in any material respect
or cancelled by the other party thereto (other than contracts or commitments
which have been terminated without any further liability or obligation on the
part of any party thereto);
(II)
SELLER AND EACH OF ITS AFFILIATES HAVE PERFORMED ALL OBLIGATIONS
UNDER ANY CONTRACT CURRENTLY IN EFFECT REQUIRED TO BE PERFORMED BY SELLER OR ANY
OF ITS AFFILIATES AND THERE IS NO MATERIAL BREACH OF OR DEFAULT UNDER ANY
CURRENTLY IN EFFECT LEASE, CONTRACT, COMMITMENT OR OTHER AGREEMENT TO WHICH
SELLER OR ANY OF ITS AFFILIATES IS A PARTY.
(D)
THE