Common use of Agreements; Action Clause in Contracts

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (b) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There are no active contracts, agreements, understandings, instruments, contractsleases, commitments, understandings, proposed transactions, judgments, orders, writs or decrees to which the Company or any Subsidiary is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), 100,000 or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's ’s or any Subsidiary’s products or services, services or (iviii) indemnification by the Company or any Subsidiary with respect to infringements of proprietary rights. (b) The Neither the Company nor any Subsidiary has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 100,000 or, in the case of indebtedness and/or liabilities individually less than $50,000100,000, in excess of $100,000 200,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory products or services in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i1) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 25,000 (other than obligations of, or payments to, the Company arising from the purchase of supplies or sale agreements of Company products entered into in the ordinary course of business), or (ii2) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "“off the shelf" ” or other standard products), or (iii3) provisions restricting the development, manufacture or distribution of the Company's ’s products or services, or (iv4) indemnification by the Company with respect to infringements of proprietary rightsrights (other than indemnification obligations arising from purchase or sale or license agreements entered into in the ordinary course of business). (b) The Company has not (i1) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii2) incurred any indebtedness for money borrowed or any other liabilities (other than with respect to indebtedness and other obligations incurred in the ordinary course of business or disclosed in the Financial Statements) individually in excess of $50,000 25,000 or, in the case of indebtedness and/or liabilities individually less than $50,00025,000, in excess of $100,000 50,000 in the aggregate, (iii3) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv4) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) abovethis Section 3.6, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated by this Agreement or as disclosed in the Ancillary Agreements, there are no agreements, understandings or proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, affiliates, or any affiliate thereof. (ab) There are no contracts, agreements, understandings, instruments, contractsleases, commitments, understandings, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), $5,000 or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's products or services, services or (iviii) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 5,000 or, in the case of indebtedness and/or liabilities individually less than $50,0005,000, in excess of $100,000 15,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory products or services in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company or any of its Subsidiaries is a party or to its knowledge by which it is bound which may involve involve: (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), ; or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), ; or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, ; or (iv) indemnification by the Company with respect to infringements of proprietary rights. (b) The Since December 31, 2004, neither the Company has not nor any of its Subsidiaries has: (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, ; (ii) incurred any indebtedness for money borrowed or any other liabilities (other than ordinary course obligations) individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, ; (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary course advances for travel expenses, ; or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There Except for this Agreement and the Ancillary Documents, there are no agreements, understandings or proposed transactions between AvantGo and any of its officers, directors, affiliates, or any affiliate thereof. (b) Except as provided in this Agreement and the Ancillary Documents, there are no agreements, judgments, orders, writs, decrees, understandings, instruments, contracts, contracts or proposed transactions, judgments, orders, writs or decrees transactions to which the Company AvantGo or any of its Subsidiaries is a party or to its knowledge by which it is bound which may that involve (i) obligations (contingent or otherwise) of, or payments to, the Company AvantGo or any of its subsidiaries in excess of $50,000 (other than obligations of, or payments to$50,000, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase AvantGo or any of "off the shelf" or other standard products)its Subsidiaries, or (iii) provisions restricting the developmentgrant of rights to manufacture, manufacture or distribution of the Company's products or servicesproduce, assemble, license, market, or (iv) indemnification by the Company with respect sell its products to infringements of proprietary rightsany other person or affect AvantGo's exclusive right to develop, manufacture, assemble, distribute, market or sell its products. (bc) The Company Neither AvantGo nor any of its Subsidiaries has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, or in excess of $100,000 150,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary advances for travel expensesperson, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company AvantGo has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) To its knowledge, AvantGo has performed all material obligations required to be performed by it as of the date hereof under any material agreement to which AvantGo is a party or to which it is bound. AvantGo is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Certificate of Incorporation, as amended to date, or Bylaws, that adversely affects its business as now conducted or currently proposed to be conducted, its properties or its financial condition. To AvantGo's knowledge, each such agreement is in full force and effect, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of general application affecting enforcement of creditors' rights generally, as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (b) to the extent the indemnification provisions contained in the Investors' Rights Agreement may be limited by applicable federal or state securities laws, except where such unenforceability would not have a Material Adverse Effect.

Agreements; Action. (i) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby, there are no material agreements, understandings, instruments, contracts or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, employees, affiliates or any affiliate thereof. (aii) There Except for agreements explicitly contemplated hereby, there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party party, or to its knowledge by which it is bound bound, which may involve (iA) obligations (contingent or otherwise) of, or annual payments to, by the Company in excess of US $50,000 (other than obligations of, or payments to, that are not terminable by the Company arising from purchase or sale agreements entered into in the ordinary course of business)on up to 30 days notice, or (iiB) the transfer or license of any patent, copyright, trademark, trade secret or other proprietary right to or from the Company (other than licenses arising from by the purchase Company of "off the shelf" or other standard products), or (iiiC) provisions restricting in any material respect the development, manufacture or distribution of the Company's products or services, or (ivD) indemnification by the Company with respect to infringements of proprietary rights. (biii) The Company has not (iA) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (iiB) incurred or guaranteed any indebtedness for money borrowed or any other liabilities (other than trade payables incurred in the ordinary course of business or as disclosed in the Financial Statements) individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, or in excess of $100,000 in the aggregate, (iiiC) made any material loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (ivD) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (civ) For the purposes of subsections (aii) and (biii) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company or any of its Subsidiaries is a party or to its knowledge by which it is bound which may involve involve: (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), ; or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), ; or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, ; or (iv) indemnification by the Company with respect to infringements of proprietary rights. (b) The Since December 31, 2003, neither the Company has not nor any of its Subsidiaries has: (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, ; (ii) incurred any indebtedness for money borrowed or any other liabilities (other than ordinary course obligations) individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, ; (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary course advances for travel expenses, ; or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby and by the Ancillary Agreements, there are no agreements, understandings or as disclosed in proposed transactions between the Company or any Exchange Act Filings:Subsidiary and any of their officers, directors, Affiliates, or any Affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company or any Subsidiary is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company or any Subsidiary in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)$50,000, or (ii) the transfer or any material license of any patent, copyright, trade secret or other proprietary right to or from the Company or any Subsidiary (other than licenses arising from (A) the purchase of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution license of the Company's ’s software and products or services, in object code form in the ordinary course of business pursuant to standard end-user agreements the form of which has been provided to special counsel for the Investors or (ivB) indemnification by the license to the Company with respect or any Subsidiary of standard, generally commercially available, “off-the-shelf” third party products that are not and will not to infringements any extent be part of proprietary rightsany product, service or intellectual property offering of the Company or any Subsidiary). (bc) The Neither the Company nor any Subsidiary has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,00025,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company or any Subsidiary has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There Except for agreements explicitly contemplated hereby, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates or any affiliate thereof. (b) Section 2.9(b) of the Company Disclosure Schedule sets forth a true and complete list of all agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments toto the Company, the Company in excess of $50,000 (25,000, other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (Company, other than licenses arising from the purchase of "off the shelf" or other standard products), or and (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 25,000 or, in the case of indebtedness and/or liabilities individually less than $50,00025,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby, by the Investors' Rights Agreement and by the Stockholders Agreement dated July 7, 1995, there are no agreements, understandings or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, affiliates, or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), $250,000 annually or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products)Company, or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 25,000 or, in the case of indebtedness and/or liabilities individually less than $50,00025,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company has not engaged in the past three (3) months in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of, or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of the Company.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There Except for agreements explicitly contemplated by the Transaction Documents, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates, or any affiliate thereof. (b) Except for this Agreement, the Governance Agreement, the Strategic Alliance Agreement and the Collaboration Agreement dated as of November 14, 2002 by and between the Company and the Investor (the “Collaboration Agreement”), there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) provisions restricting or affecting the development, manufacture or distribution of the Company’s products or services; (ii) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 100,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), ; or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rightsrights (other than indemnification obligations arising from agreements entered into in the ordinary course of business). (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, 1,000,000 or in the case of indebtedness and/or liabilities individually less than $50,000, aggregate in excess of $100,000 in the aggregate5,000,000, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections subsection (a) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts indebtedness and proposed transactions liabilities involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsectionssubsection. (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Restated Certificate or Bylaws that adversely affects its business as now conducted or as proposed to be conducted, its properties or its financial condition. (f) The Company has not engaged in the past three (3) months in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of, or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of the Company.

Agreements; Action. (a) Except as set forth on Schedule 4.6 in the Company's financial statements or as disclosed in any Exchange Act Filings: (a) There its SEC Reports, there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (b) The Since December 31, 2001, the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) except as set forth in the Company's financial statements or its SEC Reports, incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, instruments and contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) 2.6: There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (b) . The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 250,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 150,000 in the aggregate, (iii) made any loans or advances to any person not or entity in excess, individually or in the aggregate, of $100,000, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) . Neither the Company nor any subsidiary is in default with respect to any indebtedness. For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There Except as stated in the Company’s filings with the Securities and Exchange Commission (“Company’s SEC Filings”), there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates, or any affiliate thereof. (b) Except as stated in the Company’s SEC Filings, there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, by the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)$50,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products)Company, or (iii) provisions restricting or adversely affecting the development, manufacture or distribution of the Company's ’s products or services, services or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Except as stated in the Company’s SEC Filings, the Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 75,000 or, in the case of indebtedness and/or liabilities individually less than $50,00075,000, in excess of $100,000 150,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Certificate of Incorporation or its Bylaws that adversely affects its business as now conducted or as proposed to be conducted, its properties or its financial condition.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby, there are no agreements, understandings or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, affiliates, or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company in excess of $50,000 (other than obligations of25,000, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products)Company, or (iii) provisions restricting or affecting the development, manufacture development or distribution of the Company's products or services, services or (iv) indemnification by the Company with respect to infringements of proprietary rights, except as disclosed in the Reports of the Company. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stockCapital Stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iviii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business, except as disclosed in the Reports of the Company. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Restated Certificate or By-Laws that adversely affects its business as now conducted or as proposed to be conducted, its properties or its financial condition, except as disclosed in the Reports of the Company. (f) The Company has not engaged in the past three (3) months in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of, or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of the Company.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There Except for agreements explicitly contemplated hereby there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliate or any affiliate thereof that would be required to be disclosed pursuant to Regulation S-K, as promulgated by the Securities and Exchange Commission. (b) Except for agreements explicitly contemplated by the Agreements, there are no agreements, understandings, instruments, contracts, contracts or proposed transactions, judgments, orders, writs or decrees transactions to which the Company is a party or to its knowledge by which it is bound which may that involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to$100,000, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of standard "off the shelf" or other standard productsproduct licenses), or (iii) provisions restricting the developmentgrant of rights to manufacture, manufacture produce, assemble, license, market, or distribution of sell its products to any other person or affect the Company's products exclusive right to develop, manufacture, assemble, distribute, market or services, or (iv) indemnification by the Company with respect to infringements of proprietary rightssell its products. (bc) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, 10,000 or in excess of $100,000 50,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel business expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There Except for agreements explicitly contemplated by the Transaction Agreements, there are no agreements, understandings, instruments, contracts, contracts or proposed transactions, judgments, orders, writs or decrees transactions to which the Company is a party or to its knowledge by which it is bound which may that involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations ofindividually, or payments to, the Company arising from purchase or sale agreements entered into $100,000 in the ordinary course of business)aggregate, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of standard "off the shelf" or other standard productsproduct licenses), or (iii) provisions restricting the developmentgrant of rights to manufacture, manufacture produce, assemble, license, market, or distribution of sell its products to any other person or affect the Company's exclusive right to develop, manufacture, assemble, distribute, market or sell its products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rightsrights (other than as set forth in contracts entered into in the ordinary course of business). (b) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, 25,000 or in excess of $100,000 50,000 in the aggregate, other than in the ordinary course of business, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel business expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (d) Except for the Transaction Agreements, there are no agreements, understandings, or purposed transactions between the Company and any of its officers, directors, affiliates, or any affiliates thereof. (e) The Company is not a party to and is not bound by any contract, agreement, or instrument, or subject to any restriction under its Restated Certificate, that materially adversely affects its assets, properties, financial conditions, operating results, business or prospects. (f) Other than in connection with the transactions contemplated hereby, the Company has not entered into any letter of intent, memorandum of understanding or other similar document (i) with any representative of any corporation or corporations regarding the merger of the Company with or into any such corporation or corporations, (ii) with any representative of any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company would be disposed of, or (iii) regarding any other form of liquidation, dissolution or winding up of the Company.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby and by the Ancillary Agreements, there are no agreements, understandings or as disclosed in proposed transactions between the Company or any Exchange Act Filings:Subsidiary and any of their officers, directors, affiliates, or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company or any Subsidiary is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company or any Subsidiary in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)$50,000, or (ii) the transfer or any material license of any patent, copyright, trade secret or other proprietary right to or from the Company or any Subsidiary (other than licenses arising from (A) the purchase of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution license of the Company's ’s software and products or services, in object code form in the ordinary course of business pursuant to standard end-user agreements the form of which has been provided to special counsel for the Investors or (ivB) indemnification by the license to the Company with respect or any Subsidiary of standard, generally commercially available, “off-the-shelf” third party products that are not and will not to infringements any extent be part of proprietary rightsany product, service or intellectual property offering of the Company or any Subsidiary). (bc) The Neither the Company nor any Subsidiary has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,00025,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company or any Subsidiary has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is Xxxxxx and USCH are a party or to its knowledge by which it is are bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company Xxxxxx or USCH in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)10,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company Xxxxxx or USCH (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting or affecting the development, manufacture or distribution of the CompanyXxxxxx'x or USCH's products or services, services or (iv) indemnification by the Company Xxxxxx or USCH with respect to infringements of proprietary rights. (b) The Company has Xxxxxx and USCH have not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations incurred in the Ordinary Course of Business or as disclosed in the Xxxxxx and USCH Financial Statements) individually in excess of $50,000 10,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 15,000 in the aggregate, (iiiii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, expenses or (iviii) sold, exchanged or otherwise disposed of any of its their assets or rights, other than the sale of its their inventory in the ordinary course Ordinary Course of businessBusiness. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has Xxxxxx or USCH have reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings4.6: (a) There there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company or any of its Subsidiaries is a party or to its knowledge by which it is bound which may involve involve: (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 100,000 (other than obligations of, or payments to, the Company arising from purchase purchase, sale or sale license agreements entered into in the ordinary course of business), ; or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "“off the shelf" ” or other standard products), ; or (iii) provisions restricting the development, manufacture or distribution of the Company's ’s products or services, ; or (iv) indemnification by the Company with respect to infringements of proprietary rights. (b) The Since December 31, 2006, except equipment leasing through CommVest, LLC, as previously consented to by Purchaser, neither the Company has not nor any of its Subsidiaries has: (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, ; (ii) incurred any indebtedness for money borrowed or any other liabilities (other than ordinary course obligations) individually in excess of $50,000 100,000 or, in the case of indebtedness and/or liabilities individually less than $50,000100,000, in excess of $100,000 250,000 in the aggregate, ; (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary course advances for travel expenses, ; or (iv) sold, exchanged or otherwise disposed of any of its assets or rightsrights valued in excess of $100,000, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby (including the Related Agreements), there are no agreements, understandings or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, affiliates or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments toto the Company, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)20,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (Company, other than licenses arising from the purchase of "“off the shelf" ” or other standard products), or (iii) provisions materially restricting the development, manufacture or distribution of the Company's ’s products or services, services or (iv) indemnification by the Company with respect to infringements infringement of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 20,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 75,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There Except for agreements explicitly contemplated hereby there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates or any affiliate thereof that would be required to be disclosed pursuant to Regulation S-K, as promulgated by the Securities and Exchange Commission. (b) Except for agreements explicitly contemplated by the Agreements, there are no agreements, understandings, instruments, contracts, contracts or proposed transactions, judgments, orders, writs or decrees transactions to which the Company is a party or to its knowledge by which it is bound which may that involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to$100,000, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of standard "off the shelf" or other standard productsproduct licenses), or (iii) provisions restricting the developmentgrant of rights to manufacture, manufacture produce, assemble, license, market, or distribution of sell its products to any other person or affect the Company's products exclusive right to develop, manufacture, assemble, distribute, market or services, or (iv) indemnification by the Company with respect to infringements of proprietary rightssell its products. (bc) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, 10,000 or in excess of $100,000 50,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel business expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby, there are no agreements, understandings or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, affiliates or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments toto the Company, the Company in excess of $50,000 (75,000, other than obligations of, or payments to, the Company arising from purchase vendor, supplier or sale customer agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (Company, other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 75,000 or, in the case of indebtedness and/or liabilities individually less than $50,00075,000, in excess of $100,000 200,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 10,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (b) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) except as referred to in Section 5.3(d) above, incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 10,000 or, in the case of indebtedness and/or liabilities individually less than $50,00010,000, in excess of $100,000 25,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (d) The Company has not engaged in the past two years in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company, or a transaction or series of related transactions in which more than 50% of the voting power of the Company is disposed of or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of the Company.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings4.6: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions iii)provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (b) , except in the ordinary course of business. The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cb) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs decrees or decrees proposed transactions to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)10,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from a limited use license of the purchase Company's proprietary rights under its standard master services agreement entered into in the ordinary course of "off the shelf" or other standard productsbusiness), or (iii) provisions restricting the developmentgrant of rights to manufacture, manufacture produce, assemble, license, market or distribution of sell its products to any other person or affecting the Company's products exclusive right to develop, manufacture, assemble, distribute, market or servicessell its products, or (iv) indemnification by the Company with respect to infringements of proprietary rightsrights (other than indemnification obligations arising from purchase or sale or license agreements entered into in the ordinary course of business). (b) The Since January 1, 2002, except as reflected on the Company's balance sheet as of November 30, 2002, the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series Series of its capital stock, (ii) incurred (other than indebtedness that has been converted into capital stock) any indebtedness for money borrowed or incurred any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, or in excess of $100,000 250,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (d) There are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates or any affiliate thereof, other than (i) for payment of salary for services rendered, (ii) reimbursement for reasonable expenses incurred on behalf of the Company, (iii) warrants held by shareholders affiliated with the Company's directors Xxxx Xxxxx and Xxxxxxx del Xxxxxxx, and (iv) other standard employee benefits made generally available to all employees (including stock option agreements outstanding under any stock option plan approved by the Board of Directors of the Company). (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Articles or Bylaws, which materially adversely affects its business as now conducted or as proposed to be conducted, its properties or its financial condition. (f) Schedule 2.10(f) sets forth a list of (i) all of the Company's customers in contract with the Company and (ii) all of the Company's suppliers (other than equipment lessors) that consistently involve more than $10,000 per month in expense to the Company. The Company has delivered to NaviSite copies of all contracts with the Company's customers and suppliers set forth on Schedule 2.10(f). (g) The Company has not received any written or verbal notice as of the date hereof to the effect that any customer with more than $10,000 in MRR intends to cancel its contract with the Company. (h) The Company has no indebtedness for borrowed money.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby and by the Investors' Rights Agreement, there are no agreements, understandings or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, affiliates, or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)$10,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase license of "off the shelf" or other standard productsCompany's software and products in the ordinary course of business), or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 10,000 or, in the case of indebtedness and/or liabilities individually less than $50,00010,000, in excess of $100,000 25,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Restated Certificate or Bylaws that adversely affects its business as now conducted or as proposed to be conducted in the Business Plan, its properties or its financial condition. (f) The Company has not engaged in the past three (3) months in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of, or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of the Company.

Agreements; Action. Except as set forth on Schedule 4.6 12(f) or as disclosed in any Exchange Act Filings: (ai) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company or any of its Subsidiaries is a party or to its knowledge by which it is bound which may involve involve: (i) obligations (contingent or otherwise) of, or payments to, the Company or any of its Subsidiaries in excess of $50,000 (other than obligations of, or payments to, the Company or any of its Subsidiaries arising from purchase or sale agreements entered into in the ordinary course of business), ; or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company or any of its Subsidiaries (other than licenses arising from the purchase of "off the shelf" or other standard products), ; or (iii) provisions restricting the development, manufacture or distribution of the Company's or any of its Subsidiaries' products or services, ; or (iv) indemnification by the Company or any of its Subsidiaries with respect to infringements of proprietary rights. (bii) The Since September 30, 2003, neither Company has not nor any of its Subsidiaries has: (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, ; (ii) incurred any indebtedness for money borrowed or any other liabilities (other than ordinary course obligations) individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, ; (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (ai) and (bii) of this Section 12(f) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewiththerewith or with any Subsidiary thereof) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase or sale of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rightsrights (other than obligations of the Company arising from purchase or sale agreements entered into in the ordinary course of business). (b) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 contemplated by this Agreement or as disclosed in any Exchange Act Filings: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase or sale of "“off the shelf" ” or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's ’s products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rightsrights (other than obligations of the Company arising from purchase or sale agreements entered into in the ordinary course of business). (b) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (d) The Company maintains disclosure controls and procedures (“Disclosure Controls”) designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) is recorded, processed, summarized, and reported, within the time periods specified in the rules and forms of the Securities and Exchange Commission (“SEC”). Table of Contents (e) The Company makes and keeps books, records, and accounts, that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the Company’s assets. The Company maintains internal control over financial reporting (“Financial Reporting Controls”) designed by, or under the supervision of, the Company’s principal executive and principal financial officers, and effected by the Company’s board of directors, management, and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles (“GAAP”), including that: i) transactions are executed in accordance with management’s general or specific authorization; ii) unauthorized acquisition, use, or disposition of the Company’s assets that could have a material effect on the financial statements are prevented or timely detected; iii) transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that the Company’s receipts and expenditures are being made only in accordance with authorizations of the Company’s management and board of directors; iv) transactions are recorded as necessary to maintain accountability for assets; and v) the recorded accountability for assets is compared with the existing assets at reasonable intervals, and appropriate action is taken with respect to any differences. (f) There is no material weakness in any of the Company’s Disclosure Controls or Financial Reporting Controls that is required to be disclosed in any of the Exchange Act Filings, except as so disclosed.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There Except for the Registration Rights Agreement, the Registration Rights Agreement dated November 15, 2004 between the Company and certain investors, the Securities Purchase Agreement dated March 8, 2006 between the Company and certain investors, or other contracts or agreements referred to or contemplated herein or therein, there are no material agreements, understandings, instruments, contracts, understandings or proposed transactions, judgments, orders, writs or decrees to which transactions between the Company is a party and any of its officers, directors, affiliates or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rightsaffiliate thereof. (b) The Since the Statement Date, the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) except for $500,000 borrowed from Xxxxxx Xxxxx, $508,896 borrowed from Life Sciences Opportunities Fund II (Institutional) L.P., $91,104 borrowed from Life Science Opportunities Fund II, L.P., and an aggregate of $115,000 borrowed from Xxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xxxxx and Xxxxxxxxx Xxxxxxx, incurred any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations incurred in the ordinary course of business or as disclosed in the Financial Statements) individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 200,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) . For the purposes of subsections (a) and (b) abovethis subsection, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (c) Other than as described in the Schedule of Exceptions, the Company is not under any binding obligation to any third party (other than obligations to keep information or discussions confidential) as a result of any discussion or negotiation undertaken in the past twelve months relating to (i) the consolidation or merger of the Company with or into any such corporation or corporations, (ii) the sale, conveyance, or disposition of all or substantially all of the assets of the Company, or a transaction or series of related transactions in which more than 50% of the voting power of the Company is disposed of, or (iii) any other form of acquisition, liquidation, dissolution, or winding up, of the Company.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby and agreements between the Company and its employees with respect to the sale of the Company's Common Stock, there are no agreements, understandings or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, affiliates or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)25,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 25,000 or, in the case of indebtedness and/or liabilities individually less than $50,00025,000, in excess of $100,000 50,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There Except for agreements disclosed in the Memorandum or explicitly contemplated hereby, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates, or any affiliate thereof which are material to the business, affairs, prospects, operations, properties, assets or financial condition of the Company. (b) Except for agreements disclosed in the Memorandum or explicitly contemplated hereby, there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company in excess of $50,000 (other than obligations of, $25,000 except as entered into or payments to, made in connection with the business of the Company arising from purchase or sale agreements entered into as contemplated proposed in the ordinary course of business)Memorandum, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products)Company, or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Except as disclosed in the Memorandum, the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) except for legal fees incurred in connection with this transaction and loans received from Xxxxxx Xxxxx, incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 5,000 or, in the case of indebtedness and/or liabilities individually less than $50,0005,000, in excess of $100,000 25,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) Except for agreements disclosed in the Memorandum, the Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Certificate of Incorporation or Bylaws, which materially adversely affects its business as now conducted or as proposed to be conducted, its properties or its financial condition. (f) The Company has not engaged in the past three (3) months in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of, or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of the Company.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (b) The Since June 30, 2003, the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities (other than ordinary course obligations) individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby and by the Investors' Rights Agreement, there are no agreements, understandings or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, affiliates, or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)$20,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase license of "off the shelf" or other standard productsCompany's software and products in the ordinary course of business), or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 20,000 or, in the case of indebtedness and/or liabilities individually less than $50,00020,000, in excess of $100,000 50,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Restated Articles or Bylaws that materially adversely affects its business as now conducted or as proposed to be conducted, its properties or its financial condition. (f) The Company has not engaged in the past three (3) months in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of, or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of the Company.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company Raintree is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company Raintree in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)10,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company Raintree (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting or affecting the development, manufacture or distribution of the CompanyRaintree's products or services, services or (iv) indemnification by the Company Raintree with respect to infringements of proprietary rights. (b) The Company Raintree has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities (other than with respect to dividend obligations, distributions, indebtedness and other obligations incurred in the Ordinary Course of Business or as disclosed in the Raintree Financial Statements) individually in excess of $50,000 10,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 15,000 in the aggregate, (iiiii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, expenses or (iviii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course Ordinary Course of businessBusiness. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company Raintree has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. (a) Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There the SEC Reports, there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (b) The Except as set forth in the SEC Reports, the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (d) The Company has not engaged in the past two years in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company, or a transaction or series of related transactions in which more than 50% of the voting power of the Company is disposed of or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of the Company.

Agreements; Action. (i) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby, there are no material agreements, understandings, instruments, contracts or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, employees, affiliates or any affiliate thereof. (aii) There Except for agreements explicitly contemplated hereby, there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party party, or to its knowledge by which it is bound bound, which may involve (iA) obligations (contingent or otherwise) of, or annual payments to, by the Company in excess of US $50,000 (other than obligations of, or payments to, that are not terminable by the Company arising from purchase or sale agreements entered into in the ordinary course of business)on up to 30 days notice, or (iiB) the transfer or license of any patent, copyright, trademark, trade secret or other proprietary right to or from the Company (other than licenses arising from by the purchase Company of "“off the shelf" ” or other standard products), or (iiiC) provisions restricting in any material respect the development, manufacture or distribution of the Company's ’s products or services, or (ivD) indemnification by the Company with respect to infringements of proprietary rights. (biii) The Company has not (iA) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (iiB) incurred or guaranteed any indebtedness for money borrowed or any other liabilities (other than trade payables incurred in the ordinary course of business or as disclosed in the Financial Statements) individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, or in excess of $100,000 in the aggregate, (iiiC) made any material loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (ivD) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (civ) For the purposes of subsections (aii) and (biii) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. (a) Except as set forth on in the Disclosure Schedule 4.6 and for agreements contemplated hereby and by the Investors' Rights Agreement, there are no material agreements between the Company and any of its officers, directors, affiliates or any affiliate thereof. (b) Except as set forth herein, in the Disclosure Schedule or as disclosed in any Exchange Act Filings: (a) There explicitly contemplated hereby and by the Investors' Rights Agreement, there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products)Company, except for off-the-shelf software, or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Except as set forth in the Disclosure Schedule, the Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, 15,000 or in excess of $100,000 30,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Restated Certificate or Bylaws, that materially adversely affects its business as now conducted, its properties or its financial condition.

Agreements; Action. Except as set forth on Schedule 4.6 contemplated by this Agreement or as disclosed in any Exchange Act Filings: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase or sale of "off the shelf" or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rightsrights (other than obligations of the Company arising from purchase or sale agreements entered into in the ordinary course of business). (b) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (d) The Company maintains disclosure controls and procedures ("Disclosure Controls") designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Securities Exchange Act of 1934, as amended (the "Exchange Act") is recorded, processed, summarized, and reported, within the time periods specified in the rules and forms of the Securities and Exchange Commission ("SEC"). (e) The Company makes and keeps books, records, and accounts, that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the Company's assets. The Company maintains internal control over financial reporting ("Financial Reporting Controls") designed by, or under the supervision of, the Company's principal executive and principal financial officers, and effected by the Company's board of directors, management, and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles ("GAAP"), including that: transactions are executed in accordance with management's general or specific authorization; unauthorized acquisition, use, or disposition of the Company's assets that could have a material effect on the financial statements are prevented or timely detected; transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that the Company's receipts and expenditures are being made only in accordance with authorizations of the Company's management and board of directors; transactions are recorded as necessary to maintain accountability for assets; and the recorded accountability for assets is compared with the existing assets at reasonable intervals, and appropriate action is taken with respect to any differences. (f) There is no weakness in any of the Company's Disclosure Controls or Financial Reporting Controls that is required to be disclosed in any of the Exchange Act Filings, except as so disclosed.

Agreements; Action. (a) Except as set forth on Schedule 4.6 or as for agreements explicitly contemplated hereby, employment agreements to be executed subsequent to the date of this Agreement by Kendxxx X. Xxxthern and Earl X. Xxxx, xx approved by the Board of Directors, and the repayment of certain notes to Earl X. Xxxx xxx Kennxxx Xxx, xx disclosed in the Company's Financial Statements, there are no agreements, understandings or proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, affiliates, or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgmentsjudgements, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company in excess of $50,000 (other than obligations of, or payments to$5,000, with the Company arising exception of certain software royalties from purchase or sale agreements entered into in the ordinary course of business)Carnet, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from Company, with the purchase exception of "off the shelf" or other standard products)Wickenburg franchise referenced in Section 2.11, or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, excess of $100,0005000, other than ordinary advances for travel expenses, or (iviii) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of certain assets and its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Bylaws that adversely affect its business as now conducted or as proposed to be conducted in the Business Plan, its properties or its financial condition.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby and documents entered into in connection with the founding of the Company, there are no agreements or as disclosed in understandings between the Company and any Exchange Act Filings:of its officers, directors, affiliates or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments toto the Company, the Company in excess of $50,000 (10,000, other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions materially restricting the development, manufacture or distribution of the Company's ’s products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 10,000 or, in the case of indebtedness and/or liabilities individually less than $50,00010,000, in excess of $100,000 25,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, instruments and contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby and by the Investors' Rights Agreement, the Investors' Rights Agreement, the Right of First Refusal and Co-Sale Agreement, the Technology Assignment Agreement and the Voting Agreement, there are no agreements, understandings or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, affiliates, or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)$5,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products)Company, or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 5,000 or, in the case of indebtedness and/or liabilities individually less than $50,0005,000, in excess of $100,000 25,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Restated Articles or Bylaws that adversely affects its business as now conducted or as proposed to be conducted, its properties or its financial condition. (f) The Company has not engaged in the past three (3) months in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of, or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of the Company.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby, there are no agreements, understandings or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, employees, affiliates or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) future obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)10,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from by the purchase Company of "“off the shelf" ” or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) accrued, declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred or guaranteed any indebtedness for money borrowed or any other liabilities (other than trade payables incurred in the ordinary course of business) individually in excess of $50,000 5,000 or, in the case of indebtedness and/or liabilities individually less than $50,0005,000, in excess of $100,000 10,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall will be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for agreements explicitly contemplated hereby and by the Investors' Rights Agreement and the Ancillary Agreements, there are no agreements, understandings or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers, directors, affiliates, or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)$10,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase license of "off the shelf" Company's or other standard productsgenerally available shrink-wrap software and products in the ordinary course of business), or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 10,000 or, in the case of indebtedness and/or liabilities individually less than $50,00010,000, in excess of $100,000 25,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Restated Certificate or Bylaws that adversely affects its business as now conducted or as proposed to be conducted, its properties or its financial condition. (f) The Company has not engaged in the past three (3) months in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of, or (iii) regarding any other form of acquisition, liquidation, dissolution or winding up of the Company.

Agreements; Action. (a) Except as set forth on Schedule 4.6 for this Agreement, the Related Agreements or as disclosed in any Exchange Act Filings:other agreements explicitly contemplated hereby, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments toto the Company, the Company in excess of $50,000 (15,000, other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (Company, other than licenses arising from the purchase of "“off the shelf" ” or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series Series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 15,000 or, in the case of indebtedness and/or liabilities individually less than $50,00015,000, in excess of $100,000 50,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. (a) Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There Exhibit 5.8 attached hereto, there are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party party, or to its the knowledge of the Company, by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of25,000, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (Company, other than licenses arising from the purchase of "“off the shelf" ” or other standard products), products or the Company’s standard form of customer agreement or (iii) provisions restricting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements infringement of proprietary rights. (b) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stockShares, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 25,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000Person, other than ordinary advances for travel expenses, expenses or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filingsfor agreements explicitly contemplated hereby, since December 31, 1999: (a) There are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, stockholders, affiliates, or any affiliate thereof. (b) Other than contracts entered into in the ordinary course of business, there are no agreements, understandings, instruments, contracts, proposed transactions, or, to its knowledge, judgments, orders, writs or decrees decrees, to which the Company is a party or to its knowledge by which it is bound which that may involve (i) obligations (contingent or otherwise) of, or payments to, to the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)$25,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products)Company, or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (bc) The Company has not (i) declared or paid any dividends, dividends or authorized or made any distribution upon or with respect to any class or series Series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 10,000 or, in the case of indebtedness and/or liabilities individually less than $50,00010,000, in excess of $100,000 50,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Amended Certificate or Bylaws that materially adversely affects its business as now conducted or as currently proposed to be conducted, its properties or its financial condition.

Agreements; Action. Except as set forth on Schedule 4.6 (a) There are no agreements, understandings or as disclosed in proposed transactions between the Company and any Exchange Act Filings:of its officers or directors, or any family member of any of its officers or directors, or any affiliate thereof. (ab) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business)10,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products), or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company's products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights, other than indemnification provisions contained in purchase orders or license agreements arising in the ordinary course of business. (bc) The Except as set forth in the Company Financial Statements, since the Company Statement Date, the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $50,000 or, (other than with respect to indebtedness and other obligations incurred in the case ordinary course of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregatebusiness), (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000person, other than ordinary and reasonable advances for travel expenses, other than in the ordinary course of business, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (a) and subsection (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or to its knowledge by which it is bound which may involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "“off the shelf" ” or other standard products), or (iii) provisions restricting the development, manufacture or distribution of the Company's ’s products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights. (b) The Since June 30, 2004, the Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities (other than ordinary course obligations) individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, in excess of $100,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, of $100,000, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

Agreements; Action. Except as set forth on Schedule 4.6 or as disclosed in any Exchange Act Filings: (a) There Except for the Agreements and salary and stock option arrangements negotiated and executed in the ordinary course of business, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates, or any affiliate thereof. (b) Except for agreements explicitly contemplated by the Agreements, there are no agreements, understandings, instruments, contracts, contracts or proposed transactions, judgments, orders, writs or decrees transactions to which the Company is a party or to its knowledge by which it is bound which may that involve (i) obligations (contingent or otherwise) of, or payments to, the Company in excess of $50,000 (other than obligations of, or payments to$50,000, the Company arising from purchase or sale agreements entered into in the ordinary course of business), or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company (other than licenses arising from the purchase of "off the shelf" or other standard products)Company, or (iii) provisions restricting the developmentgrant of rights to manufacture, manufacture produce, assemble, license, market, or distribution of sell its products to any other person or affect the Company's products exclusive right to develop, manufacture, assemble, distribute, market or services, or (iv) indemnification by the Company with respect to infringements of proprietary rightssell its products. (bc) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $50,000 or, in the case of indebtedness and/or liabilities individually less than $50,000, 100,000 or in excess of $100,000 500,000 in the aggregate, (iii) made any loans or advances to any person not in excess, individually or in the aggregate, excess of $100,000, other than ordinary advances for travel expenses25,000, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business. (cd) For the purposes of subsections (ab) and (bc) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections. (e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Restated Certificate or Bylaws, that materially and adversely affects its business as now conducted or as proposed to be conducted, its properties or its financial condition.