THE BUSINESS,
SELLER IS NOT A PARTY TO OR SUBJECT TO ANY:
(I)
CONTRACT FOR THE PURCHASE OF MATERIALS, SUPPLIES, GOODS,
SERVICES, EQUIPMENT OR OTHER ASSETS PROVIDING FOR ANNUAL PAYMENTS BY SELLER OF,
OR PURSUANT TO WHICH IN THE LAST YEAR SELLER PAID, IN THE AGGREGATE $10,000 OR
MORE;
(II)
SALES, DISTRIBUTION OR OTHER SIMILAR AGREEMENT PROVIDING FOR THE
SALE OR LICENSE BY SELLER OF MATERIALS, SUPPLIES, GOODS, SERVICES, EQUIPMENT OR
OTHER ASSETS THAT PROVIDE FOR ANNUAL PAYMENTS TO SELLER OF, OR PURSUANT TO WHICH
IN THE LAST YEAR SELLER RECEIVED, IN THE AGGREGATE $10,000 OR MORE;
16
(III)
MAINTENANCE AGREEMENTS ("MAINTENANCE AGREEMENTS"), EXCEPT AS SET
FORTH ON SCHEDULE 3.11(A)(III), WHICH SCHEDULE LISTS ALL CUSTOMER NAMES, INVOICE
DATES, RENEWAL DATES, VALUE OF MAINTENANCE CONTRACTS, AND ANY NON-STANDARD
TERMS;
(IV)
PARTNERSHIP, JOINT VENTURE OR OTHER SIMILAR CONTRACT ARRANGEMENT
OR AGREEMENT;
(V)
CONTRACT RELATING TO INDEBTEDNESS FOR BORROWED MONEY OR THE
DEFERRED PURCHASE PRICE OF PROPERTY (WHETHER INCURRED, ASSUMED, GUARANTEED OR
SECURED BY ANY ASSET), EXCEPT CONTRACTS RELATING TO INDEBTEDNESS INCURRED IN THE
ORDINARY COURSE OF BUSINESS IN AN AMOUNT NOT EXCEEDING $10,000;
(VI)
EMPLOYMENT OR CONSULTING AGREEMENT;
(VII)
LICENSE, TECHNOLOGY TRANSFER, FRANCHISE, SOURCE CODE ESCROW OR
OTHER AGREEMENT IN RESPECT OF ANY BUSINESS INTELLECTUAL PROPERTY OR OTHER
PROPERTY OWNED OR USED BY SELLER;
(VIII)
AGENCY, DEALER, SALES REPRESENTATIVE OR OTHER SIMILAR AGREEMENT;
(IX)
CONTRACT OR OTHER DOCUMENT THAT LIMITS THE FREEDOM OF SELLER TO
COMPETE IN ANY LINE OF BUSINESS OR WITH ANY PERSON OR IN ANY AREA TO OWN,
OPERATE, SELL, TRANSFER, PLEDGE OR OTHERWISE DISPOSE OF OR ENCUMBER ANY
PURCHASED ASSET AND THAT WOULD SO LIMIT THE FREEDOM OF BUYER AFTER THE CLOSING
DATE;
(X)
CONTRACT OR COMMITMENT WITH OR FOR THE BENEFIT OF ANY INTERESTED
PERSON; OR
(XI)
OTHER CONTRACT OR COMMITMENT NOT MADE IN THE ORDINARY COURSE OF
BUSINESS THAT IS MATERIAL TO THE BUSINESS TAKEN AS A WHOLE.
(B)
EACH CONTRACT DISCLOSED IN ANY SCHEDULE TO THIS AGREEMENT OR
REQUIRED TO BE DISCLOSED PURSUANT TO SECTION 3.11(A) IS A VALID AND BINDING
AGREEMENT OF SELLER AND IS IN FULL FORCE AND EFFECT, AND NEITHER SELLER NOR, TO
SELLER'S KNOWLEDGE, ANY OTHER PARTY THERETO IS IN DEFAULT IN ANY MATERIAL
RESPECT UNDER THE TERMS OF ANY SUCH CONTRACT, NOR, TO SELLER'S KNOWLEDGE, HAS
ANY EVENT OR CIRCUMSTANCE OCCURRED THAT, WITH NOTICE OR LAPSE OF TIME OR BOTH,
WOULD CONSTITUTE AN EVENT OF DEFAULT THEREUNDER.
(C)
EACH CONTRACT DISCLOSED IN ANY SCHEDULE TO THIS AGREEMENT IS NOT
SUBJECT TO ANY AMENDMENTS, SIDE LETTERS, MODIFICATIONS OR OTHER AGREEMENTS
RELATING THERETO, EXCEPT FOR WRITTEN AMENDMENTS, MODIFICATIONS OR OTHER
AGREEMENTS AS SO DISCLOSED IN ANY SCHEDULE.
3.12
TECHNOLOGY AND INTELLECTUAL PROPERTY.
(A)
SCHEDULE 3.12(A) LISTS:
(I) ALL PATENTS AND ALL REGISTERED
TRADEMARKS, SERVICE MARKS, COPYRIGHTS AND MASK WORKS, AND ANY APPLICATIONS AND
RENEWALS FOR ANY OF THE FOREGOING OWNED BY OR ON BEHALF OF SELLER OR ITS
AFFILIATES FOR THE BENEFIT OF THE BUSINESS; (II) ALL HARDWARE
17
PRODUCTS AND TOOLS, SOFTWARE AND FIRMWARE PRODUCTS AND TOOLS AND SERVICES