2006 between Seller and Purchaser and potential claims under
Section 5.2(a)(iv) and (v) of the Asset Purchase Agreement, neither John Tuhey
of the Company nor Mark A. Harris of McDermott Will & Emery LLP, are aware, to
their actual knowledge, of any current intention of the Parent Indemnitees (as
defined in the Asset Purchase Agreement) to assert under Section 5.3 of the
Asset Purchase Agreement any material indemnity Claims (as defined in the Asset
Purchase Agreement) with respect to Losses (as defined in the Asset Purchase
Agreement) that may be indemnifiable by Seller under Section 5.2(a) of the Asset
Purchase Agreement, other than in connection with certain license matters;
3
provided, however, that nothing in this paragraph shall prevent or preclude the
Parent Indemnitees from asserting any such Claim in the future.
5.
ADDITIONAL AGREEMENTS.
(A)
THE SELLER HEREBY ACKNOWLEDGES, AGREES AND CONFIRMS THAT:
(I)
WAIVER. THE SELLER HEREBY WAIVES ANY RIGHT OR CLAIM THAT THE
UNDERSIGNED MAY HAVE OR COULD ASSERT UNDER THE ASSET PURCHASE AGREEMENT
(INCLUDING SECTION 4.14 THEREOF) RELATED TO THE ISSUANCE, REGISTRATION OR RESALE
OF ANY AND ALL COMPANY COMMON STOCK OWNED BY THE UNDERSIGNED, INCLUDING WITHOUT
LIMITATION, THE REPURCHASED SHARES;
(II)
ARM'S LENGTH NEGOTIATIONS. THIS AGREEMENT AND THE TERMS AND
CONDITIONS HEREOF ARE THE RESULT OF ARM'S LENGTH NEGOTIATIONS WITH THE COMPANY
AND THE PER SHARE PRICE REFLECTED IN THE TOTAL CONSIDERATION MAY BE MORE, LESS
OR EQUAL TO THE PREVAILING MARKET PRICE OF THE COMPANY COMMON STOCK AT THE TIME
OF THE REPURCHASE. THE SELLER ACKNOWLEDGES THAT THE COMPANY HAS MADE NO
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4 OF THIS
AGREEMENT;
(III)
INFORMATION. THE SELLER HEREBY ACKNOWLEDGES THAT IT HAS BEEN
AFFORDED (I) THE OPPORTUNITY TO ASK SUCH QUESTIONS AS THE SELLER HAS DEEMED
NECESSARY OF, AND TO RECEIVE ANSWERS FROM, REPRESENTATIVES OF THE COMPANY
CONCERNING THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE INFORMATION AND
(II) ACCESS TO INFORMATION ABOUT THE COMPANY AND ITS FINANCIAL CONDITION,
RESULTS OF OPERATIONS, BUSINESS, PROPERTIES, MANAGEMENT AND PROSPECTS SUFFICIENT
TO ENABLE IT TO EVALUATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE
SELLER ACKNOWLEDGES THAT IT HAS RECEIVED AND REVIEWED A COPY OF THE ASSET
PURCHASE AGREEMENT AND HAS RECEIVED AND REVIEWED SUCH OTHER INFORMATION AND
DOCUMENTS (INCLUDING THE INFORMATION AND THE INFORMATION STATEMENT) AS IT HAS
DEEMED NECESSARY; AND
(IV)
RELEASE. BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND
ACCEPTANCE OF THE AMOUNTS PAYABLE IN RESPECT OF THE REPURCHASED SHARES UNDER
THIS AGREEMENT, THE SELLER (THE "RELEASOR"), ON BEHALF OF ITSELF AND ITS HEIRS,
LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, HEREBY RELEASES, ACQUITS AND
FOREVER DISCHARGES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY, ANY
SUBSIDIARY OR PARENT COMPANY OF THE COMPANY AND ANY SUCCESSOR TO THE COMPANY
(NOW OR HEREAFTER EXISTING) AND EACH OF THEIR RESPECTIVE PAST, PRESENT OR FUTURE
OFFICERS, MANAGERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, AFFILIATES,
EMPLOYEES, COUNSEL AND AGENTS (EACH A "RELEASEE") OF, FROM AND AGAINST