OTHER PERSON TO CONDUCT THEIR BUSINESS AS IT IS CONDUCTED AS OF THE DATE
HEREOF AND NO SUBSTANTIAL PART OF THE BUSINESS IS CARRIED ON UNDER THE AGREEMENT
OR CONSENT OF ANY OTHER PERSON NOR IS THERE ANY AGREEMENT WITH ANY OTHER PERSON
WHICH SIGNIFICANTLY RESTRICTS THE FIELDS IN WHICH THE ACQUIRED ENTITIES'
BUSINESS MAY BE CARRIED ON.
(D)
NO DISCLOSURE HAS BEEN MADE TO ANY PERSON OF THE KNOW-HOW OR
FINANCIAL OR TRADE SECRETS OF THE ACQUIRED ENTITIES, EXCEPT IN THE ORDINARY
COURSE OF BUSINESS AND ON THE EXPECTATION THAT SUCH DISCLOSURE IS TO BE TREATED
AS BEING OF A CONFIDENTIAL NATURE.
(E)
EXCEPT AS SET FORTH ON SCHEDULE 4.12(E): (I) NONE OF THE PROCESSES
CURRENTLY USED BY THE ACQUIRED ENTITIES OR ANY OF THE PROPERTIES, PRODUCTS OR
SERVICES CURRENTLY SOLD BY THE ACQUIRED ENTITIES OR ANY INTELLECTUAL PROPERTY
INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON; AND (II) NEITHER
THE ACQUIRED ENTITIES NOR ANY SELLER HAS RECEIVED ANY NOTICE OF ADVERSE CLAIM OR
THREAT OF ADVERSE CLAIM BY ANY PERSON WITH RESPECT THERETO, AND, TO THE
KNOWLEDGE OF THE SELLERS, NO BASIS EXISTS FOR ANY SUCH CLAIM.
SECTION 4.13
CONTRACTS.
(A)
SCHEDULE 4.13(A) CONTAINS AN ACCURATE AND COMPLETE LIST, AND THE
ACQUIRED ENTITIES HAVE MADE AVAILABLE TO BUYER ACCURATE AND COMPLETE SUMMARIES
OR COPIES, OF:
(I)
EACH CONTRACT BETWEEN AN ACQUIRED ENTITY
AND A RELATED PERSON;
23
(II)
EACH CONTRACT THAT INVOLVES PERFORMANCE OF
SERVICES OR DELIVERY OF GOODS OR MATERIALS BY AN ACQUIRED ENTITY OR TO AN
ACQUIRED ENTITY, AS THE CASE MAY BE, (A) OF AN AMOUNT OR VALUE IN EXCESS OF
$75,000.00 AND (B) THAT IS NOT CANCELABLE UPON 90 DAYS OR LESS NOTICE;
(III)
EACH CONTRACT THAT WAS NOT ENTERED INTO IN
THE ORDINARY COURSE OF BUSINESS AND THAT INVOLVES EXPENDITURES OR RECEIPTS OF
THE ACQUIRED ENTITIES IN EXCESS OF $25,000.00;
(IV)
EACH CONTRACT AFFECTING THE OWNERSHIP OF,
LEASING OF, TITLE TO, USE OF, OR ANY LEASEHOLD OR OTHER INTEREST IN ANY REAL OR
PERSONAL PROPERTY (EXCEPT PERSONAL PROPERTY LEASES AND INSTALLMENT AND
CONDITIONAL SALES AGREEMENTS HAVING A VALUE PER ITEM OR AGGREGATE PAYMENTS OF
LESS THAN $25,000.00 AND WITH A TERM OF LESS THAN ONE YEAR);
(V)
EACH CONTRACT OF AN ACQUIRED ENTITY WITH ANY
LABOR UNION OR OTHER EMPLOYEE REPRESENTATIVE OF A GROUP OF EMPLOYEES RELATING TO
WAGES, HOURS AND OTHER CONDITIONS OF EMPLOYMENT;
(VI)
EACH CONTRACT (HOWEVER NAMED) INVOLVING A
PROVISION FOR THE SHARING OF PROFITS, LOSSES, COSTS OR LIABILITIES BY AN
ACQUIRED ENTITY WITH ANY OTHER PERSON, OTHER THAN DIRECT PAYMENTS FOR GOODS OR
SERVICES;
(VII)
EACH CONTRACT CONTAINING COVENANTS THAT RESTRICT
AN ACQUIRED ENTITY'S BUSINESS ACTIVITY OR LIMIT THE FREEDOM OF AN ACQUIRED
ENTITY TO ENGAGE IN ANY LINE OF BUSINESS OR TO COMPETE WITH ANY PERSON;
(VIII)
EACH CONTRACT PROVIDING FOR PAYMENTS TO OR BY AN
ACQUIRED ENTITY BASED ON SALES, PURCHASES OR PROFITS, OTHER THAN DIRECT PAYMENTS
FOR GOODS OR SERVICES;
(IX)
EACH POWER OF ATTORNEY OF AN ACQUIRED ENTITY
THAT IS CURRENTLY EFFECTIVE AND