Common use of BORROWER REPRESENTS AND WARRANTS AS FOLLOWS Clause in Contracts

BORROWER REPRESENTS AND WARRANTS AS FOLLOWS. Borrower is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified. The execution, delivery and performance of this Agreement has been duly authorized, and do not conflict with Borrower's formations documents, nor constitute an Event of Default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound. Borrower has good title to the Collateral. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an "investment company" or a company "controlled" by an "investment company" under the Investment Company Act. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations G, T and U of the Federal Reserve Board of Governors). Borrower has complied with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules. None of Borrower's properties or assets has been used by Borrower, to the best of Borrower's knowledge, by previous persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower has timely filed all required tax returns and paid, or made adequate provision to pay, all taxes. Borrower has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted. All representations and warranties in the Agreement are true and correct in all material respects on this date.

BORROWER REPRESENTS AND WARRANTS AS FOLLOWS. Borrower is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified. The execution, delivery and performance of this Agreement has been duly authorized, and do not conflict with Borrower's formations documents, nor constitute an Event of Default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound. Borrower has good title to the Collateral. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an "investment company" or a company "controlled" by an "investment company" under the Investment Company Act. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations GX, T and U of the Federal Reserve Board of Governors). Borrower has complied with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules. None of Borrower's properties or assets has been used by Borrower, to the best of Borrower's knowledge, by previous persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower has timely filed all required tax returns and paid, or made adequate provision to pay, all taxes. Borrower has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted. All representations and warranties in the Agreement are true and correct in all material respects on this date. Sincerely, SIGNATURE TITLE DATE Schedule of Permitted Indebtedness (none) Schedule of Permitted Liens (See Equipment Schedules No. 39 and No. 44 to the Lease Agreement dated September 15, 1999 between Somerset Capital Group, Ltd. and Greenfield Online, Inc.) On September 29, 2000, Greenfield Online entered into a license with Onyx Software (the "Onyx License") to license CRM software with license and maintenance fees of $394,836.75. The Company has determined that the Onyx Software does not contain the functionality represented and has requested via letter dated January 15, 2001, that Onyx agree to a rescission of the Onyx License. By letter dated January 9, 2001, (received by the Company on January 16, 2001) Onyx made demand for the payment of the Onyx License in full on or before February 9, 2001, or it will "pursue all remedies afforded to it under law". On June 8, 2001, Onyx served the Company with a complaint in the Superior Court of Washington for Kings County alleging breach of contract and unjust enrichment and demanded recovery of $439,206.41 for products and professional services rendered. The Company believes it has meritorious defenses to this action and has filed an Answer with Special Defenses as well as a Counterclaim On August 28, 2000, NPD Group, Inc., notified Greenfield Online, Inc., that it believed that Greenfield Online had violated its patent number 6,070,145, issued to NPD on May 30, 2000. NPD claims that the patent covers the solicitation of persons over the Internet to take surveys via a pop-up window. Although a license agreement has been proposed by NPD, Greenfield Online maintains the position that the patent is unenforceable and continues to investigate prior art. By Complaint dated August 6, 1999 and Amended on September 23, 1999, and filed in the U.S. District Court for the Western district of New York, Harris Interactive, Inc., filed a 5 count complaint against Greenfiexx Xxxine, Inc. The Amended Complaint seeks to have Greenfield Online, Inc.'s Service Mark "Research Revolution" cancelled and seeks a declaratory judgmenx xxat Harris Interactive is not infringing the mark (Count One), seeks monxxxxx damages for alleged defamatory statxxxxts made by an officer of Greenfield Online concerning Harris Interactive's business practices (Count Two), seeks monetary xxxxxxs for allegedly disparaging remarks made by a Greenfield Online Officer concerning Harris Interactive's business practices (Count Three), seeks monetarx xxxxges for Greenfield Online's allegedly intentional interference with contractual relationships (Count Four) and seeks monetary damages for Greenfield Online's allegedly unfair competition. The parties are in the process of substantive settlement negotiations, and have exchanged draft settlement agreements. No anticipated settlement will result in any monetary payment from Borrower. On December 7, 2000, the District Court, acting on its own motion, dismissed the case without prejudice. On June 19, 2001 the Company was notified by counsel for a former employee, Eric Stabell, that Mr. Stabell intended to assert claims against the Xxxxxxx xxx his alxxxxx "xxxxtructive discharge" due to the Company's failure to make reasonable accommodations for disabilities suffered by Mr. Stabell. The Company is alleged to have violated Connecticut Genxxxx Xxxxxxe 46a-60 and the American's With Disabilities Act. The Company believes that these claims are without merit and has replied to Mr. Stabell's attorney denying each and every claim. On June 00, 0000 xxx Company was notified by counsel for a former employee, Mark Hardy, that Mr. Hardy intends to pursue claims in the Californix xxxxxx xor damaxxx xxxxxedly suffered by Mr. Hardy in connection with his termination from employment. Mr. Haxxx xxxxxes that (i) he was induced to incur relocation expensxx xx xxxtiate a move of his personal residence from California to Connecticut, and that the Company promised to compensate Mr. Hardy for these expenses, (ii) that he was not paid accrued vacaxxxx xxx in violation of California law, (iii) that his wife, relying on his continued employment with the Company reduced her work hours to prepare for the move and start a family resulting in lost family income. Mr. Hardy claims a cash payment of $32,000 plus 6 months salary and xx xxxxxxion of the time in which he may exercise his vested Company stock options. The Company has yet to form an opinion regarding the validity of such claims. On July 17, 2001 the Company was contacted by the law firm of Bressler, Amery & Ross on behalf of Ruder Fin, Inc., a public relatixxx xxxx xxxxx the Xxxpany had engagxx xx render public relations services in 2000. Ruder Fin claims an outstanding balance due of $25,000 as a monthly xxxxxner due under a written contract for the month of January, 2001, as well as $6,024 in expenses. The Company disputes the claim on the basis that Ruder Fin and the Company agreed that when the Company terminated Ruxxx Xin's engagement, Ruder Fin agreed that the Company would be rxxxxxed from its obligatxxxx under the contract if it paid its $25,000 retainer fee for the months of November and December of 2000. The Company paid these amounts. The Company disputes the expenses claimed on the basis that some were not pre-approved and that others were for ineffective services. The Company has paid $2,855.65 of expenses it deems to be valid. On July 13, 2001, the Company received a claim from Neopets.com, Inc., ("Neopets"), that it was owed $25,000 as a fee fox xxxxxxxxxg individuals to become panelists in the Greenfield Online panel. It is the Company's position that it does not owe Neopets any fees for the recruiting it did between 1/1/01 and 3/21/01, due to the fact that the vast majority of the recruits it received from Neopets were received on March 17, 2001 and were the creation of a hacker. The remaining recruits are also invalid as they have not activated their accounts. In May, 1998, Cybergold notified Greenfield Online that it believed that Greenfield Online had violated its patent number 5,749,210, issued to Cybergold for negatively induced solicitations, claiming that this patent covered paying people to participate in surveys online. Although Cybergold proposed a license agreement, Greenfield Online took the position that it did not infringe this patent, and took no further action with respect to Cybergold. Since March of 1999 there has been no contact between Cybergold and Greenfield Online. SCHEDULE 6.4(D) AFFILIATED TRANSACTIONS MANAGEMENT BUYOUT AND LEVERAGED RECAPITALIZATION TRANSACTION On May 17, 1999, our management team and a group of new investors executed a management buyout of our company in which approximately 97% of our outstanding common stock at the time was acquired by Greenfield Holdings, a company formed specifically to execute the management buyout, and other investors. The transaction involved a series of agreements: - Stock Purchase, Sale and Redemption Agreement. Under this agreement, Greenfield Holdings purchased securities for a purchase price of $8,863,548, which, adjusted for stock splits and reflecting the conversion to common, gave them 21,855,150 shares of our common stock. - Promissory Note. Under this note, Greenfield Holdings loaned us $14,136,452 that we used in part to redeem 94.5% of outstanding stock then owned by one of our founders, Andrew Greenfield. This note is still outstanding as of July 31, 0000, xxx xx xxe on the earlier of its stated Maturity of May 17, 2009 or the occurrence of certain mandatory prepayment events as stated in the note. - Stock Purchase, Consent and Waiver Agreement. We used a portion of the proceeds of the loan granted to us by Greenfield Holdings to loan Mr. Nadilo, our Chairman, President and Chief Executive Officer, xxx Xx. Xxxxx, our Chief Technology Officer, $425,075 and $75,013, xxxxxxxxxely, to allow them to purchase Mr. Greenfield's remaining shares of common stock. Adjusted for xxxxx xxxxxx xxd reflecting the conversion to common, the purchase gave them 1,048,050 and 184,950 shares, respectively, of our common stock as of March 3, 2000. We have the right to repurchase this stock for its original purchase price from either one of Mr. Nadilo or Mr. Davis if his employment terminates for any rexxxx. Xxx restxxxxxxxx xx xxe stock lapse and the stock becomes vested 25% one year after the management buyout and 12.5% each six-month period thereafter until four years have expired. For Mr. Davis, the expiration of these restrictions will accelerate xx 00% xf his stock if we sell the stock or all or substantially all of the assets of our company. The stock purchased by Messrs. Nadilo and Davis is pledged to us to secure the repayment of their loans. - Xxxxdment to Davis and Nadilo Promissory Note / Stock Redemption. In March ox 0000, the Company and Messrs. Nadilo and Davis agreed to convert the promissory notes described above frxx xxn-recourse notes to recourse notes. Simultaneously with the closing of the Silicon Valley Facility, the Company intends to convert both such notes back from recourse notes into non-recourse notes. On April 30, 2001, Rudy Nadilo resigned his position of Chairman, president and CEX xx Xxxxxxield Online, Inc., and agreed to transfer and convey all of the shares of the Company's stock held by him in consideration for the Company's forgiveness of the debt evidenced by the note. The Company intends to redeem Mr. Nadilo's stock via the forgiveness of this debt immediately xxxxxxxxx xxx closing of the Silicon Valley Bank Facility and the amendment of Mr. Nadilo's note. NEW OFFICER LOANS In March of 2001, txx Xxxxxxx xxxxxxed additional loans to Mr. Davis in an amount up to $56,285. The proceeds of this loan xxxx xx be used by Mr. Davis solely to purchase member units of Greenfield Holdingx, XXX. Xxx proceeds of the sale of member units by Greenfield Holdings, LLC (including the proceeds from the sale of the member units to Mr. Davis) were used to purchase Greenfield Holding's pro-rata xxxxxxx xf the Company's Series A Preferred Stock offering. As security for the repayment of the loans, Mr. Davis will pledge the member units purchased with the loan xxxxxxxx. XXXEEMENTS WITH ANDREW GREENFIELD AND AFFILIATED ENTITIES We are party to a number xx xxxxxxxxxx xxxh Andrew Greenfield, a founder of our company, and with Greenfield Conxxxxxxx Xxxxx, Xxgital Idea, Inc. and Strategic Focus, Inc., all entities controlled by Mr. Greenfield. The agreements are: - Forfeiture Agreement. Undex xxxx xxxxxxxnt, made as part of our Stock Purchase, Sale and Redemption Agreement with Greenfield Holdings when we redeemed 94.5% of Mr. Greenfield's stock, he agreed that if Greenfield Consulting Xxxxx xxx xxx xefer a minimum of $2,500,000 of online research business to us by May 17, 2001, he would be subject to forfeiting up to 493,200 shares of common stock determined on a sliding scale based on the actual business referred. - Non-competition Agreement. Under this agreement, made as part of our Stock Purchase, Sale and Redemption Agreement with Greenfield Holdings, Mr. Greenfield agreed that, until March 17, 2002, he will not bx xxxxxxxx xx, own an interest in, or finance any company that provides quantitative or qualitative research over the Internet. Mr. Greenfield was granted the individual right to conduct qualxxxxxxx xxxxxxing research over the Internet as long as he used our services exclusively, provided our services were available on fair and reasonable terms as measured by industry custom.

BORROWER REPRESENTS AND WARRANTS AS FOLLOWS. Borrower is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified. The execution, delivery and performance of this Agreement has been duly authorized, and do not conflict with Borrower's formations documents, nor constitute an Event of Default under any material agreement by which Borrower is bound. Borrower is not in default under any material agreement to which or by which it is bound. Borrower has good title to the Collateral. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an "investment company" or a company "controlled" by an "investment company" under the Investment Company Act. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations G, T and U of the Federal Reserve Board of Governors). Borrower has complied with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules. None of Borrower's properties or assets has been used by Borrower, to the best of Borrower's knowledge, by previous persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower has timely filed all required tax returns and paid, or made adequate provision to pay, all taxes. Borrower has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted. All representations and warranties in the Agreement are true and correct in all material respects on this date.

BORROWER REPRESENTS AND WARRANTS AS FOLLOWS. Borrower is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified. The execution, delivery and performance of this Agreement has been duly authorized, and do not conflict with Borrower's formations documents, nor constitute an Event of Default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound. Borrower has good title to the Collateral. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an "investment company" or a company "controlled" by an "investment company" under the Investment Company Act. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations G, T and U of the Federal Reserve Board of Governors). Borrower has complied with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules. None of Borrower's properties or assets has been used by Borrower, to the best of Borrower's knowledge, by previous persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower has timely filed all required tax returns and paid, or made adequate provision to pay, all taxes. Borrower has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted. All representations and warranties in the Agreement are true and correct in all material respects on this date.. Sincerely, SIGNATURE /s/ Timothy P. Vatuone TITLE Vice President & CFO DATE Max 00, 0000 [SILICON VALLEY BANK] SILICON VALLEY BANK SPECIALTY FINANCE DIVISION SECRETARY'S CERTIFICATE OF RESOLUTION I, as Secretary of Syntellect Inc., a Delaware corporation (the "Corporation"), certify that at a meeting duly convened at which a quorum was present the following resolutions were adopted by the Board of Directors of the Corporation and that these resolutions have not been modified, amended, or rescinded and remain effective as of today's date. It is resolved that ANY ONE of the following officers of the Corporation, whose name, title and signature is below: NAME TITLE SIGNATURE ---- ----- --------- Anthony (Tony) V. Carollo, Jr. President & CEO /x/ Axxxxny X. Xxxxxxx, Xx. ---------------------------------- ----------------------------- -------------------------------- Timothy (Tim) P. Vatuone Vice President & CFO /x/ Tixxxhy X. Xxxxxxe ---------------------------------- ----------------------------- -------------------------------- ---------------------------------- ----------------------------- -------------------------------- ---------------------------------- ----------------------------- -------------------------------- ---------------------------------- ----------------------------- -------------------------------- may act for Borrower and: Sell the corporation's accounts receivable to Bank Grant to Bank a security interest in any of the corporation's assets Execute and deliver certain agreements in connection with the sale of receivables, and granting of security interests. Designate other individuals to request advances, pay fees and costs and execute other documents or agreements (including documents or agreement that waive the Corporation's right to a jury trial) they think necessary to effectuate these Resolutions. Further resolved that all acts authorized by these Resolutions and performed before they were adopted are ratified. These Resolutions remain in effect and Bank may rely on them until Bank receives written notice of their revocation. I certify that the persons listed above are the Corporation's officers with the titles and signatures shown following their names and that these resolutions have not been modified are currently effective. X /s/ Timothy P. Vatuone 5/10/2002 ------------------------------------- ------------- *Secretary or Assistant Secretary Date X /s/ Charles F. Sonneborn, III ----------------------------------- * Xx xxx xxxxxxxxxx xxficer is designated as a signer in these resolutions then another corporate officer must also sign. LOCKBOX SERVICE SUBSCRIBER AGREEMENT SILICON VALLEY BANK ("Bank") and the undersigned company ("Subscriber") agree as follows:

BORROWER REPRESENTS AND WARRANTS AS FOLLOWS. Borrower is duly existing and in good standing in its state of formation and qualified and licensed to do business in, and in good standing in, any state in which the conduct of its business or its ownership of property requires that it be qualified. The execution, delivery and performance of this Agreement has been duly authorized, and do not conflict with Borrower's formations documents, nor constitute an Event of Default under any material agreement by which Borrower is bound. Borrower is not in default under any agreement to which or by which it is bound. Borrower has good title to the Collateral. All inventory is in all material respects of good and marketable quality, free from material defects. Borrower is not an "investment company" or a company "controlled" by an "investment company" under the Investment Company Act. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations G, T and U of the Federal Reserve Board of Governors). Borrower has complied with the Federal Fair Labor Standards Act. Borrower has not violated any laws, ordinances or rules. None of Borrower's properties or assets has been used by Borrower, to the best of Borrower's knowledge, by previous persons, in disposing, producing, storing, treating, or transporting any hazardous substance other than legally. Borrower has timely filed all required tax returns and paid, or made adequate provision to pay, all taxes. Borrower has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all government authorities that are necessary to continue its business as currently conducted. All representations and warranties in the Agreement are true and correct in all material respects on this date. Sincerely, BORROWER: MICROGRAFX, INC. SIGNATURE TITLE DATE BORROWER: MICROGRAFX, INTERACTIVE, INC. SIGNATURE TITLE DATE BORROWER: INTERCAP GRAPHIC SYSTEMS, INC. SIGNATURE TITLE DATE THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED. WARRANT TO PURCHASE STOCK Corporation: MICROGRAFX, INC., a TEXAS corporation Number of Shares: 25,000 ------ Class of Stock: Common Initial Exercise Price: $7.00 per share Issue Date: MARCH 21, 2000 -------------- Expiration Date: MARCH 21, 2007 -------------- THIS WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for other good and valuable consideration, SILICON VALLEY BANK ("Holder") is entitled to purchase the number of fully paid and nonassessable shares of the class of securities (the "Shares") of the corporation (the "Company") at the initial exercise price per Share (the "Warrant Price") all as set forth above and as adjusted pursuant to Article 2 of this Warrant, subject to the provisions and upon the terms and conditions set forth in this Warrant.