Common use of Material Contracts Clause in Contracts

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.

Material Contracts. (a) Except as set forth in Section 4.16(a4.19(a) of the Disclosure Schedule, neither the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, nor any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at to or bound by any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contractcontracts” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or “definitive material agreement” (as such term is defined in Item 1.01 of Form 8-K of the SEC). Section 4.19(a) of the Disclosure Schedule lists the following contracts (such Contracts, along with the “material contracts” and “definitive material agreements” referred to in the preceding sentence, and the IP Contracts, collectively, the “Material Contracts”): (i) Contracts which restrict or limit the conduct of or competition in any line of business by the Company, any Subsidiary or any of the Company’s current or future affiliates, or the geographic area in which the Company, any Subsidiary or any of the Company’s current or future affiliates may conduct business, in each case in any material respect; (ii) Contracts which grant any right of first refusal, right of first offer or similar right or that limit or purports to limit the ability of the Company or any Subsidiary to sell, transfer, pledge or otherwise dispose of any material amount of assets or business; (iii) Contracts which would prevent, materially delay or impede the consummation of, or otherwise reduce the benefits of, the transactions contemplated by this Agreement, including the Merger; (iv) Contracts with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement, and those which relate to the formation, creation, operation, management or control of any partnership or joint venture that is material to the business of the Company and the Subsidiaries, taken as a whole; (v) Contracts which were entered into after December 31, 2007, and involve the acquisition from another person or disposition to another person, directly or indirectly (by merger, license or otherwise), of assets or capital stock or other equity interests of another person for aggregate consideration under such contract (or series of related contracts) in excess of $1 million (other than acquisitions or dispositions of inventory in the Exchange Actordinary course of business); (vi) not otherwise described in this Section 4.16(aany contract (or series of related contracts) with respect any agency or department of the United States federal government or any state or local government for the purchase of goods and/or services from the Company or any Subsidiary which would reasonably be expected to result in payments to the Company or any Subsidiary in excess of the Company.$1 million; (bvii) CollectivelyContracts which relate to an acquisition, the contracts set forth divestiture, merger, license or similar transaction and contain representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations), that are still in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveeffect and, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding could reasonably be expected to result in payments by the Company and each or any Subsidiary; (viii) Contracts which relate to any guarantee or assumption of other obligations of any third party or reimbursement of any maker of a letter of credit, except for agreements entered into in the ordinary course of business consistent with past practice which agreements relate to obligations which do not exceed $1 million in the aggregate for all such agreements; (ix) Contracts which prohibit the payment of dividends or distributions in respect of the capital stock of the Company or any of its wholly-owned Subsidiaries), prohibit the pledging of the capital stock of the Company or any wholly-owned Subsidiary or prohibit the issuance of guarantees by any wholly-owned Subsidiary; or (x) Contracts which would reasonably be expected to involve aggregate payments to or by the Company or any Subsidiary of more than $1 million over the term of such contract. (b) Section 4.19(b) of the Disclosure Schedule sets forth (i) a list of all agreements, instruments and other obligations pursuant to which any indebtedness for borrowed money or capitalized lease obligations of the Company or any Subsidiary in an aggregate principal amount in excess of $250,000 is outstanding or may be incurred or other contract of which the Company is obligated to provide funds in respect of, or to guarantee or assume, any debt of any third party in excess of $250,000 and (ii) the respective principal amounts outstanding thereunder as of the date of this Agreement. Each Material Contract is a valid and binding obligation of the Company (or, if a Subsidiary is a party, such Subsidiary) and, to the knowledge of Company, each Company Contract is legalother party thereto, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as and the Company and each Subsidiary have performed all obligations required to enforceabilitybe performed by them under each Material Contract and, to Creditors’ Rightsthe Company’s knowledge, each other party to each Material Contract has performed all material obligations required to be performed by it under such Material Contract. Except as Neither the Company nor any Subsidiary is and to the knowledge of the Company, no third party is, in violation of or default under any Material Contract, nor does any condition exist which with the passage of time or the giving of notice would cause such a violation of or default under any Material Contract, except for violations or defaults that have not reasonably be expected to havehad, and would not, individually or in the aggregate, have a Company Material Adverse Effect, neither . No counterparty to any Material Contract has cancelled or otherwise terminated any Material Contract or provided to the Company nor any of its Subsidiaries is in breach written notice, or default under any Company Contract nor, to the knowledge of the Company, is any other party oral notice, of its intent to any such Company Contract in breach or default thereunderdo so. Complete and accurate copies of each Company Contract in effect as As of the date hereof hereof, true and complete copies of all Material Contracts (including all amendments exhibits and modificationsschedules thereto) have been furnished to are either publicly filed with the SEC or otherwise the Company has made available to Parent. Neither the Company nor any Parent copies of its Subsidiaries has received written notice of any material violation of or material default under any Company Contractsuch Material Contracts.

Material Contracts. (a) Section 4.16(a) of Except for this Agreement and the Company Disclosure Letter sets forth a true and complete listother Transaction Agreements, as of the date hereof, none of this Agreement, ofCompany T or its Subsidiaries is a party to nor are any of Company T’s or its Subsidiaries’ properties or assets bound by: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) any Contract that would reasonably be expected required to result in be filed or furnished by Company T pursuant to Item 19 and paragraph 4 of the receipt Instructions to Exhibits of or making of future payments in excess of $100,000Form 20-F under the Exchange Act; (ii) each contract that grants any Contract granting a right of first refusal or right of refusal, first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)first negotiation; (iii) each contract any Contract relating to outstanding Indebtedness (the formation, creation, operation, management or commitments or guarantees in respect thereof) control of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability companycompany or similar arrangement; (iv) any Contract for the acquisition, grantor trustsale or lease (including leases in connection with financing transactions) of material properties or assets of Company T (by merger, strategic alliance agreement purchase or sale of assets or stock or otherwise); (v) any Contract with any Governmental Entity; (vi) any Contract involving the payment or receipt of amounts by Company T or its Subsidiaries, or relating to indebtedness for borrowed money or any financial guaranty, of more than US$4,000,000; (vii) any non-competition Contract or other similar agreement Contract that purports to which limit, curtail or restrict in any material respect the ability of Company T or a Subsidiary any of the Company is a party (other than its Subsidiaries to compete in any such agreement solely between geographic area, industry or among the Company and its wholly-owned Subsidiaries)line of business; (viii) each contract between any Contract that contains a put, call or among the similar right pursuant to which Company T or any Subsidiary of the Companyits Subsidiaries could be required to purchase or sell, on the one handas applicable, and any officerequity interests of any Person; (ix) any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of Company T or any of its Subsidiaries, director or Affiliate (other than a wholly-owned Subsidiary B) pledging of the Company) share capital of the Company T or any of its Subsidiaries or any (C) issuance of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the guaranty by Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company T or any of its Subsidiaries;; or (x) each any material vendor, supplier or third party consulting or similar contract not otherwise Company T IP Agreements other than agreements for Off-the-Shelf Software and UGC Agreements (all such Contracts described in this Section 4.16(aclauses (i) that through (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time x), and (B) under which it is reasonably expected the any Company or any of its Subsidiaries will be required to pay feesT VIE Contracts, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company. (b) Collectivelycollectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company T Material Contracts”).” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.

Material Contracts. (a) The Company and the Company Subsidiaries are not a party to or bound by any of the following Contracts except as set forth in Section 4.16(a2(s) of the Disclosure Schedule or described in or filed as an exhibit to the Company Disclosure Letter sets forth SEC Documents (each, including any such Contracts listed in the Company SEC Documents, a true “Material Contract,” and complete listcollectively, as of the date of this Agreement“Material Contracts”): i. any mortgages, of: (i) Each mergerindentures, business combinationguarantees, acquisitionloans or credit agreements, purchase, sale or divestiture contract that contains representations, covenants, indemnities security agreements or other obligations (including “earnout” Contracts relating to the borrowing of money or extension of credit to or by the Company, other than accounts receivables and payables in the ordinary course of business and travel and similar advances to employees in the ordinary course of business consistent with past practice; ii. any joint venture, partnership, limited liability company, strategic alliance or other contingent similar Contract relating to the formation, creation, operation, management or control of any partnership or joint venture; iii. any Contracts relating to all mergers, consolidations, recapitalizations, reorganizations or similar transactions, or any acquisitions or dispositions material to the Company, currently contemplated by the Company or that provide any ongoing material liabilities for payment obligations) that would reasonably be expected to result in of money, retention of liabilities, assets sold, indemnification or otherwise; iv. any Contract providing for the receipt payment by the Company or the Company Subsidiaries of or making of future payments an amount in excess of $100,000; (ii) each contract that grants any right of first refusal 150,000 or right of first offer or that limits the ability of the Company, any Subsidiary of to the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any Subsidiaries of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) an amount in excess of $50,000150,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any v. non-competecompetition, non-solicit, exclusivity solicitation or similar type of provision exclusive dealing Contracts or other Contracts that materially restricts restrict or limit or purport to restrict or limit in any material respect the ability of the Company or any of its Subsidiaries (including Parent upon consummation of Affiliates to solicit customers, potential employees or the Transactions) to compete manner or otherwise engage location in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) business of the Company or any of its Subsidiaries Affiliates may be conducted; vi. any Contract the benefits of which will be increased by the consummation of the transactions contemplated hereby or the value of any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 the benefits of which will be calculated on the basis of any of the Exchange Act), on transactions contemplated by this Agreement; or vii. any other Contract the other hand; (ix) each contract that obligates the Company or any termination of its Subsidiaries to indemnify any past or present directors, officerswhich, or employees of the Company or any of its Subsidiaries; (x) each material vendordefault under which, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to havewould, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding Effect. Each of the Material Contracts to which the Company and each of its Subsidiaries), each or any Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that Subsidiary is a party thereto and is in full force and effecteffect and is a valid and binding obligation of the Company or such Company Subsidiary, subjectand to the knowledge of the Company, as the other party thereto, enforceable against the Company or such Company Subsidiary, and to enforceabilitythe knowledge of the Company, enforceable against the other party thereto in accordance with its terms. Neither the Company, nor to Creditors’ Rights. Except as would not reasonably be expected the knowledge of the Company, any other party to havea Material Contract to which the Company or any Company Subsidiary is a party, is in breach or violation of, or in default under, any such Material Contract to which it is a party and no event has occurred that, individually or in the aggregate, with the lapse of time or the giving of notice or both would constitute a Company Material Adverse Effectdefault thereunder by the Company, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract noror, to the knowledge of the Company, is by any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contractthereto.

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date For purposes of this Agreement, ofa “Material Contract” means any Contract (or group of related Contracts) to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound: (i) Each that is filed or required to be filed by the Company as a “material contract” under Applicable Securities Laws in Canada; (ii) that (A) purports to limit or otherwise restrict in any material respect the ability of the Company or any of its Subsidiaries to compete in any business or geographic or therapeutic area (or that, following the Arrangement, would by its terms apply such limits or other restrictions to the Parent or its Subsidiaries), (B) grants any exclusive rights, (C) contains a “most favored nation” or similar provision, (D) includes any “take or pay” or “requirements” obligation, (E) otherwise purports to prohibit or limit the right of the Company or any of its Subsidiaries to develop, license, sell or distribute any products or services or (F) that purports to limit or otherwise restrict the ability of the Company or its Subsidiaries to solicit for hire or to hire any person; (iii) (A) containing any standstill, or similar agreement pursuant to which the Company or any of its Subsidiaries has agreed not to acquire assets or securities of another person, (B) containing a put, call, right of first refusal or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, or otherwise acquire or transfer, as applicable, any equity interests of any person or assets that have a fair market value or purchase price of more than $100,000 or (C) relating to the acquisition or disposition of any business or any material assets other than in the ordinary course of business (whether by merger, business combinationsale of shares or assets or otherwise); (iv) that would prevent, acquisitionmaterially delay or materially impede the Company’s ability to consummate the Transactions; (v) that is between the Company or any of its Subsidiaries and any of their respective directors, purchaseofficers, sale affiliates or divestiture contract any person beneficially owning five percent (5%) or more of the outstanding Common Shares; (vi) that contains representations, covenants, indemnities involves the payment or receipt by the Company or its Subsidiaries of royalties or other obligations amounts in consideration for rights to practice any Intellectual Property of more than $100,000 in the aggregate; (including “earnout” vii) (A) for the furnishing of services or the sale of products which involves, or would reasonably be expected in the future to involve, consideration in excess of $100,000 in any 12 month period, (B) for the receipt of services by a third party or for the purchase of raw materials, commodities, supplies, products, or other contingent personal property, which involves payment obligations) that by the Company or any of its Subsidiaries of consideration in excess of $100,000 in any 12 month period or which would reasonably be expected to result involve payment by the Company or any of its Subsidiaries of consideration in excess of $100,000 in any future 12 month period during the term of such agreement except for payments to trade creditors in the receipt ordinary course of business or making (C) that provides for future payment obligations by the Company or any of its Subsidiaries of $100,000 or more related to clinical trials of Company Pharmaceutical Products; (viii) under which any of the Company or any of its Subsidiaries is a lessee of, or holds or uses, any equipment, machinery, vehicle or other tangible personal property owned by a third person which requires future annual payments in excess of $100,000; (ix) pursuant to which the Company or any of its Subsidiaries has entered into a partnership, joint venture, collaboration or other similar arrangement with any person (other than intercompany agreements); (x) for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $100,000; (iixi) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates pursuant to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of which the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed agrees not to make use of any material right in any Intellectual Property owned by the Company or secured by any asset) in excess of $50,000its Subsidiaries; (ivxii) each employment contract pursuant to which the Company or any of its Subsidiaries has outstanding indebtedness, or provides a Subsidiary guarantee in a principal amount in excess of $100,000 other than indebtedness to trade creditors incurred in the ordinary course of business; (xiii) containing a settlement with respect to a Proceeding (whether commenced or threatened in writing) of any nature; (xiv) which requires future payments by the Company or any of its Subsidiaries in excess of $100,000 per annum containing “change of control” or similar provisions (whether or not such payments or benefits are contingent upon the occurrence of any other event); (xv) under which the Company or its Subsidiaries have received, or are entitled to receive, payment from any person for use in the research or development of any Company Pharmaceutical Product; (xvi) under which the Company is a obligated to make future payments of over $100,000 for the research, development, or commercialization of any Company Pharmaceutical Product; (xvii) pursuant to which the Company, any of its Subsidiaries or any other party thereto has material continuing obligations, rights or interests relating to the research, development, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to any Company Pharmaceutical Product; (xviii) any Company Lease; (xix) any employment, contractor or consulting Contract with any Company employee with annual compensation in excess of Cdn$200,000; (xx) any Contract that provides for any change of control, severance or termination pay or other than compensation or benefits related to termination of employment contracts that can be terminated at any time with less than two days’ notice and without financial liability or services to the Company or any of its Subsidiaries; (vxxi) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance collective bargaining agreement or other similar agreement to which the Company Contract with a union, works council, trade union or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries)labor relations entity; (viiixxii) each contract between any Contract with any current or among the Company former officer or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries;; or (xxxiii) each material vendorany Contract of which the Company has knowledge to which any employee, supplier consultant or third party consulting independent contractor of the Company or similar contract not otherwise described a Subsidiary is bound that in this Section 4.16(a) that any manner purports to (A) cannot be voluntarily terminated pursuant restrict such employee’s, consultant’s or independent contractor’s freedom to its terms within 60 days after the Effective Time and engage in any line of business or activity or to compete with any other Person, or (B) under assign to any other Person such employee’s, consultant’s or independent contractor’s rights to any Intellectual Property that relate to the business of the Company and its Subsidiaries. (b) Section 13(b) of the Company Disclosure Letter contains a complete and accurate list of all Material Contracts to which it is reasonably expected the Company or any of its Subsidiaries will be required is a party or by which any of their respective properties or assets are bound, and identifies each subsection of Section 13(a) that describes such Material Contract. The Company has delivered or made available to pay feesthe Parent true, expenses or other costs in excess correct and complete copies of $50,000 following the Effective Time; and (xi) each “material contract” (as such term Material Contracts, including all amendments, supplements and modifications thereto. Each of the Material Contracts is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to valid and binding on the Company or any its applicable Subsidiary and, to the knowledge of the Company. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a other party thereto and is in full force and effect. None of the Company, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract noror, to the knowledge of the Company, any other party, is in breach of, or default under, in any material respect, any Material Contract, and no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder in any material respect by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentthereto. Neither the Company nor any of its Subsidiaries has received any written notice of or other communication regarding any material actual or possible violation or breach of or material default under under, or intention to cancel or modify, any Company Material Contract. (c) Section 13(c) of the Company Disclosure Letter contains a complete and accurate list of all Designated Contracts.

Material Contracts. (a) Section 4.16(a4.10(a) of the Company Disclosure Letter Schedule sets forth a true true, complete and complete list, as correct list of each of the date of this Agreementfollowing Contracts to which the Company is a party or by which the Company is bound and which have not been entirely fulfilled or performed (such Contracts, of:collectively, the “Material Contracts”): (i) Each mergerall Contracts that contain restrictions with respect to payment of dividends or any other distribution in respect of the Membership Units or other Equity of the Company; (ii) any Contract that by its terms requires the payment by or on behalf of the Company in excess of $100,000 per annum or the delivery by the Company of goods or services with a fair market value in excess of $100,000 per annum or provides for the Company to receive payments in excess of $100,000 per annum; (iii) all Contracts involving a loan (other than accounts receivable owing from trade debtors in the Ordinary Course of Business) or advance to (other than travel and entertainment advances to the employees of the Company extended in the Ordinary Course of Business), business combinationor investment in, acquisitionany Person or any agreement relating to the making of any such loan, purchase, advance or investment in excess of $25,000; (iv) any Contract that (i) requires the Company to purchase any product or service in excess of $100,000 from a third party or (ii) requires that the Company deal exclusively with a third party in connection with the sale or purchase of any product or service; (v) any Contract that relates to an acquisition or divestiture contract of material assets that contains representations, covenants, indemnities or other contractual obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected could impose a Liability that is material to result in the receipt of or making of future payments in excess of $100,000Company; (iivi) each contract that grants any right of first refusal Contract under which the Company has any outstanding Indebtedness or right of first offer evidencing an Encumbrance on any property or that limits the ability asset of the Company, other than a Permitted Encumbrance; (vii) all Contracts under which any Subsidiary Person (other than the Company) has directly or indirectly guaranteed Indebtedness of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (ivviii) each employment contract to any bonds or Contracts of Guarantee in which the Company acts as a surety or a Subsidiary guarantor with respect to any obligation (fixed or contingent) of another Person; (ix) all Contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, co-marketing, co-promotion, joint development or similar arrangement; (x) all Contracts involving any resolution or settlement of any actual or threatened Action under which the Company has any obligation or Liability that will continue after the Closing Date; (xi) any Contract limiting or restraining the Company or any successor thereto from engaging or competing in any manner, in any location or in any business; (xii) all Affiliate Contracts; (xiii) any Company IP Agreements as well as any Contract under which the Company is a party providing for the license of or settlement with respect to any Intellectual Property including, without limitation, the Company’s Intellectual Property (other than employment contracts that can be terminated at commercially available software and hardware) and any time with less than two days’ notice and without financial liability to Intellectual Property license agreements under which the Company or any of its Subsidiariesis currently a licensee; (vxiv) each contract containing any non-competeContract concerning the acquisition, non-solicitdisposition, exclusivity occupancy, management or similar type operation of provision any Real Property owned, leased or used by the Company; (xv) all collective bargaining agreements entered into by the Company; (xvi) any Contract providing that materially restricts the Company indemnify any Person in an amount that would be material to the Company, other than any such agreement entered into in the Ordinary Course of Business; (xvii) any Contracts with any Governmental Authority to which the Company is a party; (xviii) any Contracts that limit, in any material respect, the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or in any geographic areaarea or during any period of time; (vixix) each contract pursuant all (i) employment agreements (excluding, for certainty, any employees who are employed at will) and (ii) Contracts with independent contractors or consultants (or similar arrangements) to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party and which are not cancellable without material penalty or without more than ninety (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries);90) days’ notice; and (viiixx) each contract between any Contract to purchase, lease or among otherwise acquire the Company right to own, use or lease any Subsidiary property or assets, including such Contracts entered into by an Affiliate of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs for an amount in excess of $50,000 following 100,000, individually (in the Effective Timecase of a lease, per annum) or $150,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term); and (xixxi) each “any other Contract that is material contract” (as such term is defined in Item 601(b)(10) to the operation of Regulation S-K under the Exchange Act) business of the Company and not otherwise described in disclosed pursuant to this Section 4.16(a) with respect to the Company or any Subsidiary of the Company4.10(a). (b) CollectivelyThe Company is in material compliance with the terms and provisions of each Material Contract. The Company, and to the Knowledge of the Company, the contracts set forth in Section 4.16(a) are herein referred other party to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company any Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any of its terms. The Company has not received notice of any breach, default or notice of termination by any Person under any Material Contract. A true, complete and correct copy of each written Material Contract norhas been provided to Purchaser and a description of each verbal Material Contract is set forth in Section 4.10(a) of the Company Disclosure Schedule. (c) Each Material Contract is (i) valid and binding on the Company party thereto in accordance with its respective terms and (ii) in full force and effect. Each Material Contract (or description) sets forth the entire agreement and understanding (or complete description of the material terms, to the knowledge of as applicable), between the Company, is on one hand, and the other parties thereto, on the other hand, with respect to the subject matter thereof. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. The Company has no reason to believe any party to any such Company Material Contract will not fulfill its obligations thereunder in breach or default thereunder. Complete all material respects, and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor has not received any of its Subsidiaries has received written notice of termination or intent to terminate by any material violation of or material default under party to any Company Material Contract. (d) The Company has no Liability for the deferred purchase price of property, goods or services, whether connected or not to the acquisition of any business (earn-out or other similar type of payments) or noncompetition agreement.

Material Contracts. (a) Section 4.16(a) Except as set forth in the exhibit index of the Company’s Annual Report on Form 10-K for the fiscal year ended May 26, 2007 and as permitted pursuant to Section 6.1, neither the Company Disclosure Letter sets forth nor any of its Subsidiaries is a true and complete list, as of the date of this Agreement, of: party to or bound by (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract agreement relating to outstanding the incurring of Indebtedness (or commitments or guarantees in respect thereof) of by the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $50,000; (iv) each employment contract to which 1,000,000 in the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-competeaggregate, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between which contains provisions that restrict, or among may restrict, the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary conduct of business of the Companyissuer thereof as currently conducted (collectively, on the one hand, and “Instruments of Indebtedness”); (ii) any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (iii) any non-competition or exclusive dealing agreement, or any other agreement or obligation which purports to limit or restrict in any respect (A) the ability of the Company or its Subsidiaries to solicit customers or (B) the manner in which, or the localities in which, all or any portion of the business of the Company and its Subsidiaries or, following consummation of the transactions contemplated by this Agreement, Parent and its Subsidiaries, is or would be conducted, or any non-competition or exclusive dealing agreement, or any other agreement or obligation of the type described in (A) or (B) of this clause (iii) which following the Closing would purport to apply to Parent or any of its Affiliates other than the Company and its Subsidiaries; (iv) any agreement providing for the indemnification, in excess of $2,000,000, by the Company or a Subsidiary of the Company of any Person other than standard form indemnity provisions in agreements with customers of the Company or any of its Subsidiaries entered into in the ordinary course of business consistent with past practice; (v) any joint venture or partnership agreement; (vi) any agreement that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business; (vii) any contract or agreement providing for any payments that are conditioned, in whole or in part, on a change of control of the Company or any of its Subsidiaries; (viii) any collective bargaining agreement; (ix) any agreement material to the Company and its Subsidiaries, taken as a whole, pertaining to the use of or granting any right to use or practice any rights under any Intellectual Property; (x) any agreements pursuant to which the Exchange ActCompany or any of its Subsidiaries leases any material real property or leases any material real property to third parties; (xi) any contract or agreement material to the Company and its Subsidiaries, taken as a whole, providing for the outsourcing or provision of servicing of customers, technology or product offerings of the Company or its Subsidiaries; (xii) any contract relating to the supply of any material item used by the Company or a Subsidiary that is a sole source of supply; (xiii) any contract or other agreement entered into since January 1, 1997 with respect to the acquisition or divestiture of all or any portion of a business; or (xiv) any other contract or other agreement not otherwise made in the ordinary course of business consistent with past practice that (A) is not within any of the other categories described in this Section 4.16(a4.9(a) with respect but is material to the Company and its Subsidiaries taken as a whole, (B) would reasonably be expected to result in revenues, receipts, liabilities or expenditures, or otherwise involve an amount, in excess of $5,000,000 per year or (C) would reasonably be expected to materially delay or prevent the consummation of the Offer, the Merger or any Subsidiary of the transactions contemplated by this Agreement (the agreements, contracts and obligations set forth in the exhibit index of the Company’s Annual Report on Form 10-K for the fiscal year ended May 26, 2007 and the agreements, contracts and obligations listed in clauses (i) through (xiv) being referred to herein as “Company Material Contracts”). None of the Company Material Contracts contains a “most favored nation” clause or other term providing preferential pricing or treatment to a third party. Section 4.9(a) of the Company Disclosure Schedule sets forth as of the date hereof all of the Company Material Contracts. True, correct and complete copies of each Company Material Contract have been made available to Parent. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Each Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, valid and binding and enforceable in accordance with its terms on the Company (or, to the extent a Subsidiary of the Company is a party, such Subsidiary) and, to the knowledge of the Company, any other party thereto, and each of its Subsidiaries that is a party thereto and Company Material Contract is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither Neither the Company nor any of its Subsidiaries is in breach or default under any Company Material Contract or is aware of any condition that with the passage of time or the giving of notice or both would result in such a breach or default, except in each case where any such breaches or defaults would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on the Company. Neither the Company nor any Subsidiary of the Company knows of, or has received written notice of, any breach or default under (nor, to the knowledge of the Company, is does there exist any condition which with the passage of time or the giving of notice or both would result in such a breach or default under) any Company Material Contract by any other party thereto except where any such violation or default would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on the Company. (c) There are no provisions in any Instrument of Indebtedness that provide any restrictions on the repayment of the outstanding Indebtedness thereunder, or that require that any financial payment (other than payment of outstanding principal and accrued interest) be made in the event of the repayment of the outstanding Indebtedness thereunder prior to expiration. “Indebtedness” means, with respect to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof Person, all obligations (including all amendments obligations in respect of principal, accrued interest, penalties, prepayment penalties, fees and modificationspremiums) of such Person (i) for borrowed money (including overdraft facilities), (ii) evidenced by notes, bonds, debentures or similar instruments, (iii) for the deferred purchase price of property, goods or services (other than trade payables or accruals incurred in the ordinary course of business), (iv) under capital leases (in accordance with GAAP), (v) in respect of letters of credit and bankers’ acceptances, (vi) under interest rate or currency swap or other derivative or hedging instruments and transactions (valued at the termination value thereof), (vii) secured by any Lien on property or assets owned by such Person, whether or not the obligations secured thereby have been furnished assumed, (viii) all obligations of such Person under any sale and lease back transaction, agreement to repurchase securities sold or otherwise made available to Parent. Neither other similar financing transaction and (ix) in the Company nor any nature of its Subsidiaries has received written notice guarantees of the obligations described in clauses (i) through (viii) above of any material violation of or material default under any Company Contractother Person.

Material Contracts. (a) Except for this Agreement, the Company Benefit Plans and agreements filed as exhibits to the Company SEC Documents prior to the date hereof and the agreements set forth on Section 4.16(a3.20(a) of the Company Disclosure Letter sets forth a true and complete listSchedule, as of the date of this Agreement, ofneither the Company nor any of its Subsidiaries is a party to or bound by: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC); (ii) any contract imposing any material restriction on the right or ability of the Company or any of its Subsidiaries to (A) compete with any other person or (B) acquire or dispose of the securities of another person; (iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing Indebtedness of the Company or any of its Subsidiaries in an amount in excess of $50.0 million; (iv) any Contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties with a value or requiring annual fees in excess of $50.0 million; (v) any Contract to acquire all or a substantial portion of the capital stock, business, property or assets of any other person for an amount of cash (or value of non-cash consideration), in excess of $50.0 million; (vi) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between or among the Company and or any of its Subsidiaries; (vii) any Contract limiting or restricting the ability of the Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be; (viii) any Contract containing any exclusivity or most favored nation clause; (ix) any Contract that involves future expenditures or receipts by the Company or any of its Subsidiaries of more than $50.0 million in any one year period that cannot otherwise described be terminated on less than 90 days’ notice without material payment or penalty; (x) any acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in this Section 4.16(a) with respect future payments by or to the Company or any Subsidiary of its Subsidiaries in excess of $25.0 million; (xi) any Contract with a labor union or guild (including any collective bargaining agreement); (xii) any Contract containing provisions triggered by any change of control of the Company.Company or any of its Subsidiaries; (bxiii) Collectivelyany Contract in favor of directors, officers, members, managers or partners relating to employment or compensation or providing rights to indemnification; (xiv) any Contract the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not loss or breach of which could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof ; and (including all amendments and modificationsxv) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of lease or material default under any Company Contractsublease with respect to leased real property.

Material Contracts. (a) Except as disclosed in Section 4.16(a4.9(a), Section 4.9(f) and Section 4.18 of the Company Disclosure Letter sets forth Letter, (a) neither the Company, nor any of its Subsidiaries is a true party to, and complete list, as (b) none of the date Company, any of this Agreementits Subsidiaries, ofor any of their respective properties or assets is bound by, Contracts that: (i) Each mergerare or would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K; (ii) with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement, related to the formation, creation, operation, management or control of any partnership or joint venture that is material to the business combinationof the Company and the Subsidiaries, taken as a whole, or in which the Company owns more than a 20% voting or economic interest, or with respect to which the Company has obligations of more than $250,000 in the aggregate; (iii) relate to indebtedness for borrowed money, the deferred purchase price of property or service, any credit agreement, note, bond, mortgage, debenture or other similar instrument, any letter of credit or similar facilities, any obligation to purchase, redeem, retire, defease or otherwise acquire for value any capital stock or any warrants, rights or options to acquire such capital stock, or any guarantee with respect to an obligation of any other Person, in each case, having an outstanding principal amount in excess of $250,000; (iv) relate to an acquisition, purchasedivestiture, sale merger or divestiture contract similar transaction that contains representations, covenants, indemnities or other obligations (including indemnification, “earnoutearn-out” or other contingent payment obligations) ), that would are still in effect and, individually or in the aggregate, could reasonably be expected to result in the receipt of or making of future payments in excess of $100,000250,000; (iiv) each contract that grants other than an acquisition subject to clause (iv) above, obligate the Company to make any right capital commitment or expenditure (including pursuant to any joint venture) in excess of first refusal $250,000; or (vi) prohibits the payment of dividends or right of first offer or that limits the ability distributions in respect of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) capital stock of the Company or any of its Subsidiaries (whether incurredSubsidiaries, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which prohibits the Company or a Subsidiary pledging of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any prohibits the issuance of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or guarantees by any Subsidiary of the Company; Each Contract of the type described in clauses (i) through (vi) above is referred to herein as a “Material Contract.” (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect Effect, (i) each Material Contract is valid and assuming each Company Contract has been duly authorized and is enforceable binding on each party thereto (excluding the Company and each any of its Subsidiaries)Subsidiaries to the extent such Subsidiary is a party thereto, each Company Contract as applicable, and is legal, valid, binding in full force and effect and enforceable against the Company or its Subsidiary in accordance with its terms terms, (ii) to the Knowledge of the Company, each Material Contract is valid and binding on the other parties thereto, is in full force and effect and enforceable against such other party in accordance with its terms, (iii) the Company and each of its Subsidiaries that is a party thereto and is in full force and effecthas performed all obligations required to be performed by it to date under each Material Contract, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (iv) neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of, the existence of any material violation event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a material default or breach on the part of the Company or any of its Subsidiaries under any such Material Contract, (v) neither the Company nor any of its Subsidiaries has received written notice from any other party to a Material Contract with respect to the termination, non-renewal or renegotiation in any material respects of the terms of, and otherwise has no Knowledge that such other party intends to terminate, not renew, or renegotiate in any material respects the terms of, any Material Contract. (c) The Company has made available to Parent, as of the date of this Agreement, true, correct and complete copies of (including all amendments or modifications to), all Material Contracts.

Material Contracts. (a) Section 4.16(a) As of the Agreement Date, the Company Disclosure Letter sets forth is not a true and complete list, as of the date of this Agreement, ofparty to or bound by any Contract: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected required to result in be filed by the receipt Company as a material contract pursuant to Item 601(b)(10) of or making Regulation S-K of future payments in excess of $100,000the SEC; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing contains any non-compete, non-solicit, exclusivity competition or similar type of provision other agreement that materially restricts limits the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business business, in any geographic area or with any Person or geographic areaperson; (viiii) each contract pursuant to which the Company or that creates any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement venture or other similar agreement entity with respect to which the Company or a Subsidiary any material business of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries), taken as a whole; (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(aiv) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to havewould, individually or in the aggregate, prevent, materially delay or materially impede the Company’s ability to consummate the Transactions; (v) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement providing for indebtedness in excess of $1,000,000, other than intercompany agreements; (vi) that is a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto written contract (excluding other than this Agreement) for the sale of any of its assets after the Agreement Date in excess of $1,000,000, other than in the ordinary course of business consistent with past practice; (vii) under which the Company and each the Company’s Subsidiaries are expected to make annual expenditures or receive annual revenues in excess of $1,000,000 during the current or a subsequent fiscal year; (viii) containing a right of first refusal, right of first negotiation or right of first offer in favor of a party other than the Company or its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on ; (ix) that obligates the Company and each to file a registration statement under the Securities Act of its Subsidiaries 1933 which filing has not yet been made; or (x) that is an interest rate, equity or other swap or derivative instrument. Each such contract described in clauses (i)-(x) is referred to herein as a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company “Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.”

Material Contracts. (a) Section 4.16(a4.10(a) of the Company Disclosure Letter sets forth Schedule contains a true and complete list, as list of the date following types of this Agreement, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract Contracts to which the Company or a Company Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries;is bound: (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xii) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under promulgated by the Exchange Act) not otherwise described in this Section 4.16(aSEC) with respect to the Company or any Company Subsidiary; (ii) all Contracts or arrangements with any Third Party constituting joint ventures or partnerships; (iii) all Contracts relating to Indebtedness (other than indebtedness for borrowed money) of the Company or any Company Subsidiary in excess of $3,000,000 and all Contracts relating to indebtedness for borrowed money of the Company or any Company Subsidiary in excess of $1,000,000; (iv) all Contracts entered into after July 1, 2008 relating to any acquisition or disposition, directly or indirectly (including by merger, consolidation, combination or amalgamation), by the Company or any of the Company Subsidiaries of properties or assets or capital stock or other equity interests of another Person for aggregate consideration under such Contract in excess of $500,000, except, in each case, for acquisitions and dispositions of properties, assets and inventory in the ordinary course of business and consistent with past practice; (v) all Contracts currently used in the current conduct of the business of the Company or any Company Subsidiary and, to the Knowledge of the Company, any other Contract, which contain covenants that limit, or purport to limit, the ability of the Company or any Company Subsidiary to engage in any line of business, or to compete with any Person or operate at any geographic location or during any period of time; (vi) each Contract that contains obligations of the Company or any Company Subsidiary secured by a Lien (other than a Permitted Lien), or provides for interest rate or currency hedging arrangements, in each case in connection with which the aggregate actual or contingent obligations of the Company and the Company Subsidiaries under such Contract are greater than $250,000; (vii) each Contract with a Governmental Entity that involved aggregate payments of over $500,000 in 2010 or is reasonably likely to involve aggregate payments of over $500,000 in 2011; (viii) All Contracts pursuant to which any material Intellectual Property is licensed (or rights to use are granted) to the Company or any Company Subsidiary and also both (A) used in the current conduct of the business of the Company or a Company Subsidiary and (B) subject to remaining material payment obligations by the Company or any Company Subsidiary (excluding shrink-wrap or click-wrap licenses or licenses concerning generally commercially available software); (ix) All Contracts pursuant to which any material Company Intellectual Property is licensed (or rights to use granted) by the Company or any Company Subsidiary that are subject to remaining material payment obligations by a Third Party; (x) all Contracts and Leases concerning the use, occupancy, management or operation of, or evidencing any interests in, any Leased Real Property that are, in each case, material to the Company and the Company Subsidiaries, taken as a whole (“Material Real Property Leases”); (xi) all Contracts that (A) require the Company or any Company Subsidiary to use any supplier or Third Party for all or substantially all of the requirements or needs for the operation of the business of the Company or any Company Subsidiary as currently conducted, (B) obligate the Company or any Company Subsidiary to conduct business on a “most favored nations” basis with any Third Party, (C) limit or purport to limit the ability of the Company or any Company Subsidiary to solicit any customers or clients of any other Person, (D) require the Company or any Company Subsidiary to market or co-market any clinical laboratory services or other products or services of a Third Party, or (E) are “take-or-pay” Contracts or other similar agreements or arrangements requiring the Company or any Company Subsidiary to make a minimum payment for goods or services from Third Party suppliers irrespective of usage that are material to the Company and the Company Subsidiaries, taken as a whole; (xii) each Contract pursuant to which the Company or any Company Subsidiary is bound that includes a continuing “earn out” or other contingent payment obligation, in each case, that could result in payments in excess of $250,000 other than ordinary course agreements with customers, suppliers or licensors; (xiii) each Contract between or among the Company or any Company Subsidiary, on the one hand, and any of their respective Affiliates (other than the Company or any Company Subsidiary), on the other hand, that involves payments of more than $250,000 in any one year; (xiv) each Contract involving aggregate payments of over $1,000,000 over its remaining term that is not terminable by the Company or one of its Subsidiaries without penalty and on less than 120 days notice, other than Contracts entered into in the ordinary course of business and consistent with past practice; and (xv) all other Contracts, whether or not made in the ordinary course of business, the absence of which would have a Company Material Adverse Effect. Each Contract of the type described in this Section 4.10(a), whether or not set forth in Section 4.10(a) of the Company Disclosure Schedule is referred to herein as a “Company Material Contract.” (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as for matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Company Material Contract is a legal, valid and binding obligation of the Company or a Company Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Company Subsidiary in accordance with its terms, subject to the Bankruptcy and Equity Exceptions, (ii) to the Company’s Knowledge, each Company Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exceptions, (iii) the Company and each of the Company Subsidiaries, and, to the Knowledge of the Company, each other party thereto, has performed all obligations required to be performed by it under each Company Material Contract (excluding performance obligations not yet due), (iv) neither the Company nor any Company Subsidiary has received any written claim or notice of its Subsidiaries (A) a default, termination or cancellation under any Company Material Contract, (B) any intent or threat to claim any of the foregoing or (C) seeking to amend any provision of any Company Material Contract in a manner materially adverse to the Company or any Company Subsidiary and (v) neither the Company nor any Company Subsidiary nor, to the Company’s Knowledge, any other party thereto is in breach or violation of, or default under under, any Company Material Contract norand no event has occurred, including the execution by the Company of this Agreement, or not occurred through the Company’s or any Company Subsidiary’s action or inaction or, to the knowledge Company’s Knowledge, the action or inaction of the Companyany Third Party, is any other party to any such Company Contract in that with notice or lapse of time or both, will constitute a breach or violation of, or default thereunderunder, any Company Material Contract. Complete and accurate correct copies of each all Company Contract in effect Material Contracts (as of amended or modified) are either publicly filed with the date hereof (including all amendments and modifications) SEC or have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as As of the date of this Agreementhereof, ofneither the Company nor any Subsidiary is a party to or bound by: (i) Each merger, business combination, acquisition, purchase, sale any lease (whether of real or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligationspersonal property) that would reasonably be expected to result in the receipt of or making of future payments in excess providing for annual rentals of $100,000500,000 or more; (ii) each contract that grants any right agreement for the purchase of first refusal materials, supplies, goods, services, equipment or right other assets providing for either (A) annual payments by the Company and the Subsidiaries of first offer $500,000 or that limits more or (B) aggregate payments by the ability Company and the Subsidiaries of $1,000,000 or more; (iii) any sales, distribution or other similar agreement providing for the Company, sale by the Company or any Subsidiary of materials, supplies, goods, services, equipment or other assets that provides for either (A) annual payments to the Company and the Subsidiaries of $2,000,000 or more or (B) aggregate payments to the Company and the Subsidiaries of $5,000,000 or more; (iv) any partnership, joint venture or other similar agreement or arrangement; (v) any agreement relating to the disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) owned by the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)its Subsidiaries; (iiivi) each contract any agreement relating to the acquisition of any business (whether by merger, sale of stock, sale of assets or otherwise) (A) entered into since January 1, 2010 or (B) that contains any outstanding Indebtedness (non-competition, earn-out or commitments other contingent payment obligations or guarantees in respect thereof) any other outstanding obligation of the Company or any of its Subsidiaries Subsidiaries; (vii) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess ), except any such agreement with an aggregate outstanding principal amount not exceeding $500,000 and which may be prepaid on not more than 30 days’ notice without the payment of $50,000any penalty; (ivviii) each employment contract any agreement pursuant to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its SubsidiariesSubsidiaries is granted rights (including any covenant not to assert) with respect to any material Intellectual Property (other than licenses of unmodified commercially available off-the-shelf software); (vix) each contract containing any non-compete, non-solicit, exclusivity agreement pursuant to which the Company or similar type any of provision that materially restricts the ability of its Subsidiaries grants rights (including any covenant not to assert) with respect to any material Intellectual Property owned by or licensed to the Company or any of its Subsidiaries (including Parent upon consummation any agreement that would encumber or purport to encumber any Intellectual Property owned by or exclusively licensed to any Affiliate of the TransactionsCompany (other than any of its Subsidiaries) which is not a direct party to such agreement), other than non-exclusive grants of such rights in the ordinary course of business by the Company or any of its Subsidiaries in connection with and limited to use of any of the Company’s or its Subsidiaries’ supplied products or services; (x) any option, franchise or similar agreement; (xi) any agency, dealer, sales representative, marketing or other similar agreement; (xii) any agreement that limits the freedom of the Company or any Subsidiary (or that purports, after the Closing to limit the freedom of Parent, the Company or any of their respective affiliates) to compete or otherwise engage in any line of business or with any Person or geographic in any area; (vixiii) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase agreement with (A) any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company’s Affiliates, on the one hand(B) any Person directly or indirectly owning, and any officercontrolling or holding with power to vote, director 5% or Affiliate (other than a wholly-owned Subsidiary more of the Company) outstanding voting securities of the Company or any of its Subsidiaries Affiliates, (C) any Person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by the Company or any of their respective its Affiliates or (D) any director or officer of the Company or any of its Affiliates or any “associates” or members of the “immediate family” members (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand;0000 Xxx) of any such director or officer; or (ixxiv) each contract any other agreement, commitment, arrangement or plan not made in the ordinary course of business that obligates is material to the Company and the Subsidiaries, taken as a whole. (b) Each agreement, contract, plan, lease, arrangement or commitment disclosed in any Schedule to this Agreement or required to be disclosed pursuant to this Section or any other Section of its Subsidiaries to indemnify any past or present directorsthis Article 4 (each, officers, or employees a “Material Contract”) is a valid and binding agreement of the Company or any of its Subsidiaries; (x) each material vendorSubsidiary, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably case may be expected to have(subject, individually or in the aggregatecase of enforceability, a Company Material Adverse Effect to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and assuming each Company Contract has been duly authorized other laws affecting creditors’ rights generally and is enforceable on each party thereto (excluding the Company and each to general principles of its Subsidiariesequity), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subjectand none of the Company, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract norSubsidiary or, to the knowledge of the Company, is any other party to thereto is in default or breach in any material respect under the terms of any such Company Contract in breach agreement, contract, plan, lease, arrangement or commitment, and, to the knowledge of the Company, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute any event of default thereunder. Complete True and accurate complete copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) such agreement, contract, plan, lease, arrangement or commitment have been furnished to or otherwise made available delivered to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.

Material Contracts. (a) Section 4.16(a4.10(a) of the Company Disclosure Letter Schedule sets forth a true an accurate and complete list, as list of each of the date of this Agreement, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract following Contracts to which the Company or a Subsidiary of the Company is a party other than employment contracts that can or by which its assets are or may be terminated at any time with less than two days’ notice and without financial liability bound (all such Contracts required to be set forth on Section 4.10(a) of the Disclosure Schedule, collectively, “Material Contracts”): (i) Contract pursuant to which the Company is bound by any covenant not to compete or otherwise restricts in any of its Subsidiaries; (v) each contract containing material respect or contains any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts material limitations on the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage solicit in any line of business or in any geographic territory; (ii) Contract pursuant to which the Company has (A) incurred, assumed or guaranteed (or may create, incur, assume or guarantee) any Indebtedness, individually or in the aggregate, in excess of $50,000 or related to any Financial Derivative/Hedging Arrangement, (B) granted a Lien (other than a Permitted Lien) on its assets, whether tangible or intangible, to secure any Indebtedness, or (C) extended credit to any Person, in each case, in an amount in excess of $25,000 of committed credit; (iii) Contract relating to any joint venture, partnership, strategic alliance or similar arrangement pursuant to which the Company either receives or makes payments in excess of $50,000 annually; (iv) Contract entered into in connection with a completed material acquisition by the Company since January 1, 2011 of any Person or geographic areaother business organization, division or business of any Person (including through merger or consolidation or the purchase of a controlling equity interest in or substantially all of the assets of such Person (or division thereof) or by any other manner); (v) Contract pursuant to which the Company licenses from a third party Intellectual Property that is material to the Business, other than click-wrap, shrink-wrap and off-the-shelf software licenses, and any other software licenses that are commercially available on reasonable terms to the public generally with license, maintenance, support and other fees less than $25,000 per year; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely Contract between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officerGaiam Travel, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries Gaiam Travel Parent, Xxxxxxxx or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act)Affiliates, on the other hand; (ixvii) each contract that obligates Contract with outstanding obligations for the Company sale or any purchase of its Subsidiaries personal property, fixed assets or real estate having a value individually, with respect to indemnify any past all sales or present directorspurchases thereunder, officersin excess of $25,000 or, together with all related Contracts, in excess of $50,000; (viii) Contract involving the payment to or employees obligation of the Company for goods and services (A) in excess of $200,000 annually or (B) in excess of $250,000 over the life of the Contract and which has a term of at least twelve (12) months, other than (a) any Contract required to be disclosed pursuant to any other clause under this Section 4.10(a) and (b) any Contract involving payments or obligations of its Subsidiariesthe Company with respect to any Company Benefit Plan or Parent Benefit Plan; (ix) Contract not made in the ordinary course of business and not disclosed pursuant to any other clause under this Section 4.10(a) that (A) is expected to result in revenue or require expenditures in excess of $100,000 in any calendar year or which resulted in revenue or expenditures during the fiscal year ended December 31, 2015 in excess of $100,000 or (B) has a term of at least (12) months and is expected to result in revenue or require expenditures in excess of $250,000 over the life of the Contract; (x) each Contract between the Company and any Governmental Entity (whether direct or indirect (including through a subcontracting or similar arrangement)); (xi) Contract relating to material vendor, supplier sales representatives or material third party consulting marketing for the Company; (xii) Contract granting power of attorney to any Person on behalf of the Company; (xiii) Contract the primary purpose of which is to provide for indemnification by the Company of any other Person; and (xiv) Contract pursuant to which the Company has or similar contract not otherwise described in this Section 4.16(a) that benefits from any outstanding fixed or non-contingent obligation with any travel operator (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and 150,000 individually or (xiB) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation Sfor a multi-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companyyear term. (b) Collectively, the contracts Sellers have made available to Purchaser complete and accurate copies of each written Contract (other than purchase orders) set forth on Section 4.10(a) of the Disclosure Schedule (including all written amendments, modifications and supplements thereto). Except for any Material Contract that has terminated in all respects, with respect to each Material Contract (including purchase orders for purposes of this Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries4.10(b)), each Company Contract is legal, (i) all Material Contracts are valid, binding and enforceable in accordance with its terms on against the Company and, to the Knowledge of Sellers, against the other parties thereto (except in each case as the enforceability thereof may be limited by any applicable bankruptcy, reorganization, insolvency or other Applicable Laws affecting creditors’ rights generally or by general principles of equity), and each of its Subsidiaries that is a party thereto and is are in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (ii) neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge Knowledge of the CompanySeller, is any other party to any such Company Contract thereto is in material breach of or material default (or would be in material breach, violation or default thereunder. Complete and accurate copies but for the existence of each Company Contract in effect as a cure period or passage of the date hereof time) under any Material Contract, (including all amendments and modificationsiii) have been furnished to or otherwise made available to Parent. Neither the Company nor has not received any written or, to the Knowledge of its Subsidiaries has received written Sellers, verbal claim or notice of any material violation breach of or material default under any Material Contract, (iv) no event has occurred which individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any Material Contract by the Company or, to the Knowledge of Sellers, any other party thereto (in each case, with or without notice or lapse of time or both) and (v) the Company has not received written notice from any other party to any Material Contract that such party intends to terminate or not renew any Material Contract.

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets forth a true and complete listOther than this Agreement or as made available to Purchaser, as of the date of this Agreement, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary none of the Company or any of their respective Affiliates the Company Subsidiaries is a party to own, operate, sell, transfer, pledge or otherwise dispose of bound by: (i) any businesses, securities or assets (other than provisions requiring notice of or consent Contract that would be required to assignment be filed by any counterparty thereto); (iii) each contract relating the Company as a “material contract” pursuant to outstanding Indebtedness (or commitments or guarantees in respect thereofItem 601(b)(10) of Regulation S-K promulgated by the SEC; (ii) any Contract containing covenants binding upon the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries Company Subsidiary (including Parent upon or which, following the consummation of the TransactionsTransactions could materially restrict the ability of the Company) to compete or otherwise engage in any line business that is material to the Company and the Company Subsidiaries, taken as a whole, as of business the date of this Agreement, or with any Person person or in any geographic area; (vi) each contract pursuant to which , except for any such Contract that may be cancelled without penalty by the Company or any Company Subsidiary upon notice of 60 days or less; (iii) any Contract with respect to a material joint venture or material partnership agreement (excluding information technology Contracts); (iv) any Contract with any director, officer or Affiliate of the Company may be obligated to issue or repurchase any Company Capital Stock Subsidiary (other than any Company Employee Benefit Plan); (v) any Contract for the acquisition, disposition, sale or any capital lease of material properties or assets (by merger, purchase or sale of stock or other equity interests in assets or otherwise); (vi) any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnershipemployment, joint venturedeferred compensation, limited liability companyseverance, grantor trustbonus, strategic alliance agreement retirement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among entered into by the Company or any Subsidiary of the CompanyCompany Subsidiary, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) officer of the Company or any other employee of its Subsidiaries the Company or any Company Subsidiary receiving annual cash compensation of their respective “associates” $200,000 or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act)more, on the other hand; ; (ixvii) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directorsContract, officersother than Leases, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to contemplating payments by the Company or any Subsidiary of more than $300,000 in any calendar year; and (viii) each amendment, supplement or modification in respect of any of the Company. foregoing Contracts or any commitment or agreement to enter into any of the foregoing contracts. Each such Contract described in clauses (bi) Collectively, the contracts set forth in Section 4.16(athrough (viii) are herein is referred to herein as the a “Company ContractsMaterial Contract.” Except as would not reasonably be expected to have“Contract” means any agreement, individually contract, obligation, arrangement, undertaking or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries other commitment that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contractlegally binding.

Material Contracts. (a) Section 4.16(a3.16(a) of the Company Disclosure Letter sets forth a true Schedule lists each of the following Contracts of BSC and complete listthe Sellers with respect to the Business or by which any of the Purchased Assets may be bound (such Contracts, as whether listed or required to be listed, being the “Material Contracts”): (i) any Contract for the distribution or sale of Products by the Business, which involved consideration or payments in excess of $250,000 in the aggregate during the year ended December 31, 2009 or contemplates or involves consideration or payments in excess of $250,000 after the date of this Agreement, of:; (iii) Each merger, business combination, acquisition, purchase, sale all Contracts with independent contractors or divestiture contract that contains representations, covenants, indemnities consultants (or other obligations (including “earnout” or other contingent payment obligationssimilar arrangements) that would reasonably be expected to result in the receipt of or making of future involve annual payments in excess of $100,000; (ii) each contract that grants any right 150,000, or in the case of first refusal Contracts with U.S. health care professionals $75,000, and are not cancelable without penalty or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other further payment and without more than provisions requiring notice of or consent to assignment by any counterparty thereto)60 days’ notice; (iii) each contract relating to outstanding Indebtedness (any Contract for the purchase of materials, supplies, goods, services, equipment or commitments or guarantees in respect thereof) of the Company other assets providing for annual payments by BSC or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess Seller of $50,000250,000 or more and is not cancelable without penalty or further payment and without more than 60 days’ notice; (iv) each employment contract to which the Company any employee collective bargaining Contract with any labor union, staff association, works council or a Subsidiary other body of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiariesemployee representatives; (v) each contract containing any non-competelease for personal property providing for annual rentals payable by BSC or any Seller of $250,000 or more and is not cancelable without penalty or further payment and without more than 60 days’ notice; (vi) any Contract concerning the establishment or operation of a partnership, non-solicit, exclusivity joint venture or limited liability company or other similar type agreement or arrangement; (vii) all Transferred IP Agreements; (viii) all leases in respect of provision the Leased Real Property and the Cork Purchaser Leased Facility; (ix) all Contracts that materially restricts limit or purport to limit the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) Business to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary geographic area or during any period of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiariestime; (x) each any Contract creating or granting a material vendorEncumbrance (other than Permitted Encumbrances) on any Purchased Asset; (xi) any other Contract with respect to the Business not made in the ordinary course of business which involved payments to or by BSC or any Seller in excess of $250,000 in the aggregate during the year ended December 31, supplier 2009 or third party consulting contemplates or similar contract not otherwise described involves payments to or by BSC or any Seller in excess of $250,000 in any 12 month period after the date of this Section 4.16(aAgreement; and (xii) that (A) cannot be voluntarily terminated all material Contracts pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company BSC or any of its Subsidiaries will be required to pay fees, expenses or other costs Affiliates provides services in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyBusiness. (b) CollectivelyBSC has delivered to Purchaser true and complete copies (including all amendments, the contracts set forth in Section 4.16(amodifications and waivers thereto) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveof each written Material Contract, individually or in the aggregate, and a Company description of each oral Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiariesif any), each Company . Each Material Contract (i) is legal, validvalid and binding on one or more of BSC and the Sellers and, binding and enforceable in accordance with its terms on to the Company and each Knowledge of its Subsidiaries that is a party thereto BSC, the counterparties thereto, and is in full force and effecteffect and (ii) upon consummation of the transactions contemplated by this Agreement, subjectexcept to the extent that any consents set forth in Section 3.02 of the Disclosure Schedule are not obtained, as to enforceability, to Creditors’ Rightsshall continue in full force and effect without penalty or other adverse consequence. Except as would not reasonably be expected to have, individually None of BSC or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries Sellers is in breach of, or default under under, any Company Material Contract norto which it is a party and, to the knowledge Knowledge of the CompanyBSC, is any (i) no other party to any such Company Material Contract is in breach of, or default thereunder. Complete under, any Material Contract and accurate copies (ii) no event has occurred which with notice or lapse of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to time would constitute a breach or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of default, or material default would permit termination, modification or acceleration, under any Company such Material Contract.

Material Contracts. (a) Section 4.16(a) Parent has made available to the Company true, correct and complete copies of each of the Company Disclosure Letter sets forth following contracts (each, a true and complete list, as of the date of this Agreement, of"Parent Material Contract") to which Parent or Subsidiaries are a party or which bind or affect their respective properties or assets: (i1) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) any Contract that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “be filed by Parent as a "material contract” (as such term is defined in " pursuant to Item 601(b)(10) of Regulation S-K under the Exchange ActSecurities Act or disclosed by Parent on a Current Report on Form 8-K. (2) any Contract or group of related Contracts for the purchase or lease of services, products, materials, supplies, goods, equipment, or other assets providing for either (A) annual payments by Parent in excess of $100,000, including any and all purchase orders; or (B) which give rise to anticipated receipts by the counterparty to the Contract of more than $100,000 in any calendar year, in each case that cannot otherwise described be terminated on more than ninety (90) days' notice without payment by Parent of a penalty in this Section 4.16(aexcess of $100,000; (3) any Contract involving the obligation of Parent to sell products or services pursuant to which the aggregate payments to become due to Parent exceeds $100,000 annually. (4) any option, license, franchise or similar Contract. (5) any employment, severance, retention, change in control or similar Contract with any current or former director, officer or employee with the title of vice-president or higher of Parent in respect of which Xxxxxx has or could reasonably be expected to have ongoing payment obligations after the Closing Date; (6) any Contract containing provisions that limit the ability of Parent or any of its Subsidiaries (or which, following the consummation of the Merger, could restrict the ability of the Company or any Subsidiary of its Subsidiaries, including the CompanySurviving Company and its Subsidiaries) to compete in any business or with any Person or in any geographic area, or to sell, supply or distribute any of Parent's services or products (including any non-compete, exclusivity, "most-favored-nation" or similar requirements) or pursuant to which any benefit or right is required to be given or lost, or any penalty or detriment is incurred, as a result of so competing or engaging; (7) except for arrangements entered into solely among wholly owned Subsidiaries of Parent, any Contract that relates to Indebtedness having an outstanding principal amount in excess of $1,000,000 or conditional sale arrangements, the sale, securitization or servicing of loans or loan portfolios, in each case, in connection with which the aggregate actual contingent obligations of Parent and its Subsidiaries under such contract are greater than $1,000,000. (b) CollectivelyEach Parent Material Contract is valid and binding on Parent or the Subsidiary of Parent that is a party thereto and, to the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveKnowledge of Parent, individually or in the aggregateeach other party thereto, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company in full force and each of its Subsidiaries), each Company Contract is legal, valid, binding effect and enforceable in accordance with its terms on terms, except to the Company extent enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors' rights generally, and each of to general equitable principles, and unless expired or terminated in accordance with its terms. Parent, its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceabilityand, to Creditors’ Rightsthe Knowledge of Parent, each other party thereto, have performed and complied with all obligations required to be performed or complied with by them under each Parent Material Contract. Except as would not reasonably be expected to have, individually There is no default under any Parent Material Contract by Parent or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract noror, to the knowledge Knowledge of the CompanyParent, is by any other party to any such Company Contract in breach party, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to thereunder by Parent or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice or, to the Knowledge of Parent, by any material violation of or material default under any Company Contractother party thereto.

Material Contracts. (a) Section 4.16(a3.21(a) of the Company Disclosure Letter sets forth contains a true true, complete and complete listcorrect list of the following Contracts to which the Company or any of its Subsidiaries is a party or by which any property or asset of the Company or any of its Subsidiaries is bound, in each case as of the date of this Agreement, of:other than Company Plans listed on Section 3.18(a) of the Company Letter (collectively, the “Material Contracts”): (i) Each merger(A) each Contract that limits the freedom of the Company, any of its Subsidiaries or any of its Affiliates to compete or engage in any line of business combinationor geographic region or with any Person, acquisitionsell, purchasesupply or distribute any product or service or that otherwise has the effect of restricting in any material respect the Company, sale its Subsidiaries or divestiture contract that contains representationsAffiliates, covenantstaken as a whole, indemnities from the development, marketing or distribution of products and services, in each case, in any geographic area or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other obligations (including “earnout” or other contingent payment obligationsthan the Company and its Subsidiaries) that would reasonably be expected to result in after the receipt of or making of future payments in excess of $100,000Acceptance Time; (ii) each contract partnership, joint venture or limited liability company agreement (other than any such agreement solely between or among the Company and its wholly owned Subsidiaries) or similar Contract that is material to the Company and its Subsidiaries, taken as a whole; (iii) each Contract entered into since January 1, 2014: (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries of any business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer, or similar transaction), or (B) pursuant to which the Company or any of its Subsidiaries will acquire or is obligated to acquire any interest or make an investment (other than the Company or any of its Subsidiaries), in each case, other than such Contracts that are immaterial to the Company and its Subsidiaries, taken as a whole; (iv) each Contract with respect to the acquisition or disposition of any Person (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of shares in the share capital or other voting securities, tender offer, exchange offer, or similar transaction) pursuant to which the Company or any of its Subsidiaries has (A) material continuing indemnification obligations (other than in the ordinary course in connection with the development, sale or licensing of Company Products), or (B) any “earn-out” or similar contingent payment obligations, in each case, (x) other than any such obligations that are immaterial to the Company and its Subsidiaries, taken as a whole, or (y) other than any Contract that provides solely for the acquisition of inventory, raw materials or equipment in the ordinary course; (v) any and all Contracts required to be listed on (x) Section 3.16(e) or (y) Section 3.16(f) of the Company Letter; (vi) (A) each Contract that grants any right of first refusal or right of first offer in favor of a Third Party or that materially limits the ability of the Company, any Subsidiary of the Company its Subsidiaries or any of their respective its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businessesmaterial businesses or material assets or (B) Contracts of the type described in clause (A) above, securities or assets solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than provisions requiring notice of or consent to assignment by any counterparty thereto)the Company and its Subsidiaries) after the Acceptance Time; (iiivii) (A) each contract supply Contract that contains any exclusivity rights (other than customization work for customers relating to outstanding Indebtedness Company Products) or “most favored nations” provisions or minimum use, supply or display requirements that is binding on the Company or its Affiliates or (B) Contracts of the type described in clause (A) above, solely to the extent such Contracts limit the rights of Buyer and its Affiliates (other than the Company and its Subsidiaries) after the Acceptance Time; (viii) other than instruments providing for indebtedness that would not, in the aggregate, exceed $50,000,000, each Contract that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or commitments other agreement providing for indebtedness (including obligations under any capitalized leases but excluding agreements between the Company and any wholly owned Subsidiary of the Company or guarantees in respect thereofbetween wholly owned Subsidiaries of the Company) of or pursuant to which the Company or any of its Subsidiaries guarantees any such indebtedness of any other Person (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which other than the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-another wholly owned Subsidiary of the Company), (B) materially restricts the Company’s and its Subsidiaries’ (taken as a whole) ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any property or asset of the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole, or any of their respective “associates” (D) is an interest rate derivative, currency derivative, forward purchasing, swap or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other handhedging contract; (ix) each contract collective bargaining agreement and each Contract with any labor union, works council or similar organization; (x) each Contract that obligates provides for a settlement or conciliation (A) with any Governmental Authority that materially (x) restricts or imposes material obligations upon the Company or its Subsidiaries (taken as a whole) or (y) materially disrupts the business of the Company and its Subsidiaries (taken as a whole) as currently conducted, or (B) that would require the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees pay consideration of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days more than $10,000,000 after the Effective Time and (B) under which it is reasonably expected the Company or any date of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Timethis Agreement; and (xi) each Contract not otherwise described in any other subsection of this Section 3.21(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange Act) not otherwise described in this Section 4.16(aSEC) with respect to the Company or any Subsidiary of the Company. (b) CollectivelyA true, correct and complete copy of each Material Contract in effect as of the contracts set forth in Section 4.16(a) are herein referred date of this Agreement has been made available to as Buyer or publicly filed with the “Company Contracts.” SEC prior to the date of this Agreement. Except as for matters that would not reasonably be expected to have, individually have or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither (i) each Material Contract is a valid, binding and enforceable obligation of the Company nor any or one of its Subsidiaries is in breach or default under any Company Contract norSubsidiaries, on the one hand, and, to the knowledge of the Company, of the other party or parties thereto, on the other hand, in accordance with its terms, subject to the Enforceability Exceptions, and each Material Contract is any in full force and effect, (ii) the Company and each of its Subsidiaries has performed all obligations required to be performed by it under each Material Contract to date and, to the knowledge of the Company, each other party to any each Material Contract has performed all obligations required to be performed by it under such Company Material Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as to date, (iii) none of the date hereof Company or any of its Subsidiaries has received written notice of any, and, to the knowledge of the Company, none of the Company or any of its Subsidiaries is in, default or material breach under (including all amendments nor does there exist any condition which upon the passage of time or the giving of notice or both would cause such a default or material breach under) any Material Contract and modifications(iv) have been furnished to or otherwise made available to Parent. Neither neither the Company nor any of its Subsidiaries has received any written notice of from any material violation of other party to any such Material Contract that such party intends to terminate, or material default under not renew, any Company such Material Contract.

Material Contracts. (a) Section 4.16(a) of Except for Contracts or commitments disclosed in Schedule 3.12, the Company Disclosure Letter sets forth is not a true and complete list, as of the date of this Agreement, ofparty to or subject to: (i) Each mergerany lease, business combinationrental, acquisition, purchase, conditional sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess similar Contract providing for annual rentals of $100,00010,000 or more; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract Contract relating to outstanding Indebtedness (indebtedness, guarantee, capital lease, credit or commitments financing or guarantees in respect thereof) other Contract for borrowed money or the deferred purchase price of the Company or any of its Subsidiaries property (whether incurred, assumed, guaranteed or secured by any asset) or any other Liability, except Contracts relating to indebtedness or Liabilities incurred in excess the ordinary course of business consistent with past practices in an amount not exceeding $10,000; (iii) any Contract for the purchase of materials, supplies, goods, services, equipment or other assets providing for annual payments by the Company of $50,00010,000 or more; (iv) each employment contract to which any sales, distribution or other similar Contract providing for the sale by the Company of materials, supplies, goods, services, equipment or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability assets providing for annual payments to the Company of $10,000 or any of its Subsidiariesmore; (v) each contract containing any non-competeagency, non-solicitdealer, exclusivity sales representative or other similar type Contract; (vi) any employment or consulting Contract, and any Contract with any officer, director, employee or 10% stockholder of provision the Company; (vii) any partnership, joint venture or other similar Contract; (viii) any license, franchise agreement or Contract in respect of similar rights granted to or held by the Company; (ix) any Contract or other document that materially restricts limits the ability freedom of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or in any geographic area; (vi) each contract pursuant to area or which would so limit the Company or any Subsidiary freedom of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of after the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its SubsidiariesClosing Date; (x) any Contract for the acquisition of any Person or business thereof or the disposition of any material assets of the Company, other than in the ordinary course of business consistent with past practices, in each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs case involving payments in excess of $50,000 following the Effective Time; and10,000 or as contemplated by this Agreement; (xi) each “material contract” any Contract requiring capital expenditures after the date hereof in an amount in excess of $10,000 in any calendar year; (as such term is defined in Item 601(b)(10xii) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect any Contract relating to the Company’s Proprietary Rights or the use by the Company of the Proprietary Rights of any other Person; or (xiii) any other Contract or any Subsidiary commitment not made in the ordinary course of business that is material to the Company. (b) CollectivelyEach Contract and commitment required to be disclosed in Schedule 3.12 is a valid and binding agreement of the Company, is in full force and effect, and is enforceable against the Company, and to the Knowledge of the Company, the contracts set forth other parties thereto, in Section 4.16(a) are herein referred accordance with its terms, subject to as applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors’ rights generally and to the “Company Contracts.” general principles of equity. Except as would disclosed on Schedule 3.12, neither the Company nor, to the Knowledge of the Company, any other party thereto is in breach of or default in any material respect under the terms of any such Contract or commitment. The Company has not received any notice of any breach or violation of, or default under, any Contract or commitment required to be disclosed in Schedule 3.12 that could reasonably be expected to haveresult, individually or in the aggregate, in a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither and there has not occurred any event that, with the Company nor any lapse of its Subsidiaries is in time or giving of notice or both, would constitute such a breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contractdefault.

Material Contracts. (a) Section 4.16(a) 2.19 of the Company Disclosure Letter sets forth Schedule contains a true and complete listlist of all material contracts (written or oral), plans, undertakings, commitments or agreements to which the Company or any of its subsidiaries is a party or by which any of them is bound as of the date of this Agreement, of. (b) Section 2.19 of the Company Disclosure Schedule contains a complete and accurate list of the following: (i) Each mergerpromissory notes, business combinationloans, acquisitionagreements, purchaseindentures, sale or divestiture contract that contains representations, covenants, indemnities evidences of indebtedness or other obligations instruments providing for the lending of money, whether as borrower, lender or guarantor (including “earnout” excluding trade payables or other contingent payment obligations) that would reasonably be expected to result receivables arising in the receipt ordinary course of or making of future payments in excess of $100,000business); (ii) each contract that grants any right of first refusal contracts or right of first offer or that limits agreements containing covenants limiting the ability of the Company, any Subsidiary freedom of the Company or any of their respective Affiliates its subsidiaries or affiliates to own, operate, sell, transfer, pledge engage in any line of business or otherwise dispose of compete with any businesses, securities person or assets (other than provisions requiring notice of or consent to assignment by operate at any counterparty thereto)location; (iii) each contract relating to outstanding Indebtedness change in control or similar arrangements with any officers, employees or agents of the Company that will result in any obligation (absolute or commitments or guarantees in respect thereofcontingent) of the Company or any of its Subsidiaries subsidiaries to make any payment to any officers, employees or agents of the Company following either the consummation of the transactions contemplated hereby, termination of employment, or both (whether incurred, assumed, guaranteed or secured by any assetother than as set forth in Section 2.10(e) in excess of $50,000the Company Disclosure Schedule); (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiarieslabor contracts; (v) each contract containing any non-competelicense, non-solicitconsent, exclusivity royalty and other agreements concerning Intellectual Property (as defined below) (other than agreements with guides and other providers of content entered into in the ordinary course of business); (vi) distribution and syndication partnerships or arrangements; (vii) joint venture or partnership agreements or joint development or similar type agreements pursuant to which any third party is entitled to develop any products on behalf of provision that materially restricts the ability Company or its subsidiaries (other than agreements with guides and other providers of content entered into in the ordinary course of business); (viii) any contract or agreement for the acquisition, directly or indirectly (by merger or otherwise), of material assets (other than inventory) or capital stock of another person; and (ix) contracts or agreements involving the issuance or repurchase of any capital stock of the Company or any of its Subsidiaries subsidiaries (including Parent upon consummation other than the Stock Plans and the ESPP and the Company's repurchase rights with respect to Company Common Stock issued in connection with any of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area;foregoing). (vic) each contract pursuant For the purpose of this Agreement, the term "CONTRACTS" shall mean all of the contracts (written or oral), plans, undertakings, commitments and agreements are, or are required to which the Company or any Subsidiary be, contained in Section 2.19 of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary Disclosure Schedule. True and complete copies of the written Contracts identified on Section 2.19 of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) Disclosure Schedule have been furnished to delivered or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as As of the date of this Agreementhereof, ofneither the Company nor any Subsidiary is a party to or bound by: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract agreement relating to outstanding Indebtedness (the pharmacy benefit administration and management services business owned or commitments or guarantees in respect thereof) of operated by the Company or any of its Subsidiaries that would reasonably be expected to generate net annualized revenues in an amount in excess of $5 million; (ii) any material partnership, joint venture or other similar agreement or arrangement; (iii) any agreement entered into after January 31, 2007 relating to the acquisition or disposition of any material business (whether by merger, sale of stock, sale of assets or otherwise); (iv) any agreement for the purchase or sale of materials, supplies, goods, services, equipment or other assets providing for either annual payments by or to the Company and its Subsidiaries of $30 million or more that cannot be terminated on not more than 60 days’ notice without payment by the Company or any Subsidiary of any material penalty; (v) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of with an aggregate committed or outstanding principal amount exceeding $50,00010 million; (ivvi) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract agreement containing any non-compete, non-solicit, exclusivity provision or similar type of provision that materially restricts covenant limiting in any material respect the ability of the Company or any of its Subsidiaries (including Parent upon or, after the consummation of the TransactionsMerger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to compete (A) sell any products or otherwise services of or to any other Person or in any geographic region, (B) engage in any line of business or (C) compete with or to obtain products or services from any Person or geographic area; (vi) each contract pursuant limiting the ability of any Person to which provide products or services to the Company or any Subsidiary of its Subsidiaries (or, after the consummation of the Company may be obligated to issue or repurchase any Company Capital Stock Merger, Parent, the Surviving Corporation or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notestheir respective Subsidiaries); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance any agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Companyits Subsidiaries, on the one hand, and any officerAffiliate, director or Affiliate officer (or, to the Company’s knowledge, any of their respective Affiliates), on the other than a wholly-owned Subsidiary hand in each case of the type and amount that would be required to be disclosed in the Company’s annual proxy statement under Item 404 of Regulation S-K under the 1933 Act that has not been previously disclosed in the Company SEC Documents; or (viii) any agreement that requires annual payments in excess of $5 million or is otherwise material containing any provision pursuant to which the execution, delivery and performance of this Agreement, or the consummation of the transactions contemplated hereby, would require any consent or other action by any Person thereunder, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, thereunder, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companyentitled thereunder. (b) CollectivelyExcept for breaches, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually violations or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each contract disclosed or required to be disclosed in Section 5.20 of the Company Disclosure Schedule (each, a “Material Contract”) is valid and in full force and effect and (ii) neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract norSubsidiaries, nor to the Company’s knowledge of the Company, is any other party to any Material Contract, has violated any provision of, or taken any action which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Company Contract in breach or default thereunder. Complete Material Contract, and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither neither the Company nor any of its Subsidiaries has received written notice of that it has breached, violated or defaulted under, or providing for the termination of, any material violation of or material default under any Company Material Contract.

Material Contracts. (a) Section 4.16(a4.19(a) of the Company Disclosure Letter sets forth a true and complete listSchedule lists, as of the date of this Agreementhereof, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary following types of the Company or any of their respective Affiliates Contracts to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of which the Company or any of its Subsidiaries is a party or by which any of the Company, its Subsidiaries or any of their respective properties is bound (whether incurredsuch Contracts required to be so listed, assumed, guaranteed the “Company Material Contracts”): (a) any Contract that would be required to be filed by the Company as an exhibit to a registration statement on Form S-1 or secured an annual report on Form 10-K filed by any asset) in excess of $50,000the Company; (ivb) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts any Contract that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts limits the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) or Affiliates to compete or otherwise engage in any line of business or with any Person or in any geographic area; (vi) each contract pursuant to which , or that restricts the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) right of the Company or any of its Subsidiaries or Affiliates to sell to or purchase from any of their respective “associates” Person or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act)to hire any Person, on or that grants the other handparty or any third Person “most favored nation” status or any type of analogous rights; (ixc) each contract any Contract with respect to the formation, creation, operation, management or control of a joint venture, partnership, limited liability company or other similar arrangement; (d) any Contract evidencing or relating to Indebtedness; (e) any Contract involving the acquisition or disposition, directly or indirectly, of (i) any Person or substantially all of the assets thereof, or (ii) any business units; (f) any Contract relating to the employment of any Person; (g) any Contract that by its terms provides for the aggregate payment or receipt by the Company and its Subsidiaries of more than $250,000 over the remaining term of such Contract; (h) any Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification, guarantee, “earn-out” or other contingent payment obligations; (i) any Contract that obligates the Company or any of its Subsidiaries to indemnify make any past capital commitment or present directors, officersinvestment in, or employees loan to, any Person (other than the Company and its Subsidiaries); (j) any Contract between the Company or any of its Subsidiaries, on the one hand, and any director or officer, or direct or indirect stockholder, of the Company or any of its Subsidiaries, on the other hand, excluding any Company Plan; (xk) any Contract with respect to any Company Leased Real Property; (l) any Contract with any Governmental Entity; (m) any Contract that requires a notice or consent in connection with the transactions contemplated hereby, or that otherwise contains a provision relating to “change of control” or “assignment by operation of law” or an analogous provision, or that would otherwise reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated hereby; and (n) any Contract that is otherwise material to the Company and its Subsidiaries, taken as a whole. Each Company Material Contract is valid and binding on the Company or its Subsidiaries party thereto and, to the Knowledge of the Company, each material vendorother party thereto, supplier or third party consulting or similar contract not otherwise described and is in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to full force and effect and enforceable in accordance with its terms within 60 days after (except with respect to any Enforceability Exceptions). The Company and each of its Subsidiaries and, to the Effective Time and (B) Knowledge of the Company, each other party thereto, has performed all material obligations required to be performed by it under which it each Company Material Contract. There is reasonably expected no material default under any Company Material Contract by the Company or any of its Subsidiaries will be required or, to pay feesthe Knowledge of the Company, expenses any other party thereto, and no event or other costs in excess condition has occurred that constitutes or, after notice or lapse of $50,000 following time or both, would constitute, a material default on the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) part of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of its Subsidiaries or, to the Knowledge of the Company. (b) Collectively, any other party thereto, nor, as of the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to havedate hereof, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under received any Company Contract nor, to the knowledge notice of the Company, is any other party to any such material default, event or condition. The Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise has made available to Parent. Neither Parent on the Virtual Data Room true and complete copies of all Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company ContractMaterial Contracts.

Material Contracts. (a) Except for the Original Merger Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xxi) of Section 4.16(a3.16(a) of the Company Disclosure Letter sets forth a true and complete listSchedule, as of the date of this AgreementOriginal Execution Date, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) none of the Company or any of its Subsidiaries is a party to or bound by the following Contracts: (whether incurredi) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act; (ii) any Contract relating to the formation, assumedcreation, guaranteed operation, management or secured by control of any assetSubsidiary of the Company or any other partnership, joint venture, strategic collaboration, global affiliation or business cooperation, limited liability company or similar arrangement; (iii) any Contract involving a loan (other than accounts receivable from trade debtors in excess the ordinary course of $50,000business) or advance to (other than travel and entertainment allowances to the employees of the Company and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person or any Contract relating to the making of any such loan, advance or investment for more than US$5,000,000; (iv) each any Contract involving Indebtedness of the Company or any of its Subsidiaries of more than US$5,000,000; (v) any Contract (including so called take-or-pay or keep-well agreements) under which any person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company or any of its Subsidiaries of more than US$5,000,000; (vi) any Contract granting or evidencing a Lien on any properties or assets of the Company or any of its Subsidiaries with value of more than US$5,000,000, other than a Permitted Encumbrances; (vii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks; (viii) any Contract for the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of properties or assets of the Company or any of its Subsidiaries that have a fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as to which claims are pending; (ix) any Contracts involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute with amount in controversy greater than US$5,000,000; (x) any Contract involving a standstill or similar arrangement; (xi) any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any of its Subsidiaries to compete in any geographic area, industry or line of business; (xii) any Contract for the employment contract of any senior executive officer; (xiii) any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a Subsidiary fair market value or purchase price of more than US$5,000,000; (xiv) any Contract (other than Contracts granting Company Options, or Company RSs) giving the other party the right to terminate such Contract as a result of the Original Merger Agreement, this Agreement or the consummation of the Transactions, including the Merger, where (A) such Contract requires any payment in excess of US$5,000,000 to be made by the Company or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year; (xv) any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company is a party other than employment contracts that can be terminated at or any time with less than two days’ notice and without financial liability to of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the Company or any of its Subsidiaries; (vxvi) each contract containing any non-competeContract providing for (A) a license, non-solicitcovenant not to sxx or other right granted by any Third Party under any Intellectual Property to the Company or any of its Subsidiaries, exclusivity (B) a license, covenant not to sxx or similar type of provision that materially restricts the ability of other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (including Parent upon consummation C) an indemnity of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which person by the Company or any Subsidiary of the Company may be obligated to issue its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or repurchase violation of any Company Capital Stock Intellectual Property right, or (D) any capital stock royalty, fee or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which amount payable by the Company or a Subsidiary any of its Subsidiaries to any person by reason of the Company is a party ownership, use, sale or disposition of Intellectual Property, in each case of clauses (A) through (D), other than any agreements for off-the-shelf Software and such agreement solely between or among Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its wholly-owned Subsidiaries)Subsidiaries in the ordinary course of business; (viiixvii) each contract any Contract granting rights in respect of exclusivity, “most favored nation” or similar rights; (xviii) any Contract between or among the Company or any Subsidiary of the Companyits Subsidiaries, on the one hand, and any officer, director or Affiliate of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments of more than US$5,000,000 in any one year; (xix) each Control Agreement and any other any Contract which (A) provides the Company with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a wholly-owned Subsidiary majority of the Companyequity interests (each, an “Operating Subsidiary”), (B) of provides the Company or any of its Subsidiaries the right or option to purchase the equity interests in any of their respective “associates” Operating Subsidiary, or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 C) transfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Exchange Act), on the other handCompany; (ixxx) each contract that obligates any Contract between the Company or any of its Subsidiaries to indemnify and any past director or present directors, officers, or employees executive officer of the Company or any person beneficially owning five percent or more of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot the outstanding Shares required to be voluntarily terminated disclosed pursuant to its terms within 60 days after Item 7B or Item 19 of Form 20-F under the Effective Time and Exchange Act (B) under which it is reasonably expected the Company or any of its Subsidiaries will including those that would be required to pay fees, expenses or other costs in excess be disclosed if the Form 20-F were filed as of $50,000 following the Effective TimeOriginal Execution Date); andor (xixxi) each “material contract” (as any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise Contract described in this Section 4.16(aclauses (i) with respect to (xxi) and each such Contract that would be a Material Contract if it had not been filed as an exhibit to the Company or any Subsidiary of the CompanySEC Reports is referred to herein as a “Material Contract.” (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Material Contract is a legal, neither valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company nor any of its Subsidiaries is in breach or default under any Company Contract norand, to the knowledge of the Company, no counterparty, is any other party or is alleged to any such Company Contract be in breach or violation of, or default thereunder. Complete and accurate copies of each Company Contract in effect as under, any Material Contract; (iv) to the knowledge of the date hereof Company, no person intends to terminate any Material Contract; and (including all amendments and modificationsv) have been furnished none of the execution of the Original Merger Agreement, the execution of this Agreement or the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of the rights of any Group Company under any Material Contract. The Company has furnished or made available to Parent. Neither the Company nor Parent true and complete copies of all Material Contracts, including any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contractamendments thereto.

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets forth a true and complete listOther than this Agreement or as made available to Purchaser, as of the date of this Agreement, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary none of the Company or any of their respective Affiliates the Company Subsidiaries is a party to own, operate, sell, transfer, pledge or otherwise dispose of bound by: (i) any businesses, securities or assets (other than provisions requiring notice of or consent Contract that would be required to assignment be filed by any counterparty thereto); (iii) each contract relating the Company as a “material contract” pursuant to outstanding Indebtedness (or commitments or guarantees in respect thereofItem 601(b)(10) of Regulation S-K promulgated by the SEC; (ii) any Contract containing covenants binding upon the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries Company Subsidiary (including Parent upon or which, following the consummation of the TransactionsTransactions could materially restrict the ability of the Company) to compete or otherwise engage in any line business that is material to the Company and the Company Subsidiaries, taken as a whole, as of business the date of this Agreement, or with any Person person or in any geographic area; (vi) each contract pursuant to which , except for any such Contract that may be cancelled without penalty by the Company or any Company Subsidiary upon notice of 60 days or less; (iii) any Contract with respect to a material joint venture or material partnership agreement (excluding information technology Contracts); (iv) any Contract with any director, officer or Affiliate of the Company may be obligated to issue or repurchase any Company Capital Stock Subsidiary (other than any Company Employee Benefit Plan); (v) any Contract for the acquisition, disposition, sale or any capital lease of material properties or assets (by merger, purchase or sale of stock or other equity interests in assets or otherwise); (vi) any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnershipemployment, joint venturedeferred compensation, limited liability companyseverance, grantor trustbonus, strategic alliance agreement retirement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among entered into by the Company or any Subsidiary of the CompanyCompany Subsidiary, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) officer of the Company or any other employee of its Subsidiaries the Company or any Company Subsidiary receiving annual cash compensation of their respective “associates” $150,000 or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act)more, on the other hand; ; (ixvii) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directorsContract, officersother than Leases, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to contemplating payments by the Company or any Subsidiary of more than $250,000 in any calendar year; and (viii) each amendment, supplement or modification in respect of any of the Company. foregoing Contracts or any commitment or agreement to enter into any of the foregoing contracts. Each such Contract described in clauses (bi) Collectively, the contracts set forth in Section 4.16(athrough (viii) are herein is referred to herein as the a “Company ContractsMaterial Contract.” Except as would not reasonably be expected to have“Contract” means any agreement, individually contract, obligation, arrangement, undertaking or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries other commitment that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contractlegally binding.

Material Contracts. (ai) Except for this Agreement, Section 4.16(a3.01(o) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this the Original Agreement, and the Company has made available to Parent true and complete copies of: (iA) Each mergereach contract, business combinationlease, acquisitionlicense, purchasenote, sale or divestiture contract that contains representations, covenants, indemnities bond or other obligations agreement (including each, a “earnout” or other contingent payment obligationsContract”) that would reasonably be expected required to result in be filed by the receipt Company as a “material contract” pursuant to Item 601(b)(10) of or making of future payments in excess of $100,000Regulation S-K under the Securities Act; (iiB) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Companyemployment, any Subsidiary of the Company or any of their respective Affiliates to ownconsulting, operateseverance, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of termination and indemnification Contract between the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed and director or secured by officer of the Company or any asset) such Subsidiary or other employee earning cash compensation in excess of $50,000100,000 per year; (ivC) each employment contract Contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; Subsidiaries is a party that (vI) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any business or otherwise engage with any person in any line of business or with to offer, sell, license, supply or distribute any Person service or geographic area; product, or (viII) each contract pursuant grants exclusive rights to which any person, except for any such Contract that may be canceled, without material penalty or other liability to the Company or any Subsidiary of the Company may be obligated to issue its Subsidiaries, upon notice of 90 days or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes)less; (viiD) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement Contract to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract is a party that obligates may call for aggregate payments by the Company or any of its Subsidiaries of more than $500,000, except for any such Contract that may be canceled, without material penalty or other liability to indemnify the Company or any past of its Subsidiaries, upon notice of 90 days or present directorsless; (E) each Contract to which the Company or any of its Subsidiaries is a party that calls for aggregate payments to the Company or any of its Subsidiaries of more than $500,000, officersprovided, or employees that if a Contract does not specify an aggregate amount to be paid to the Company, then such Contract shall be disclosed pursuant to this subparagraph (E) if aggregate payments to the Company pursuant to such Contract over the last 12 months shall have exceeded $500,000; and (F) each loan and credit agreement, letter of credit, note, debenture, bond, indenture and other similar Contract pursuant to which any indebtedness of the Company or any of its Subsidiaries; (x) , in each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs case in excess of $50,000 following 100,000, is outstanding or may be incurred, other than any such Contract between or among the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) Company and any of Regulation S-K under its Subsidiaries. Each Contract of the Exchange Act) not otherwise type described in this Section 4.16(aclause (A) with respect through (F) above is referred to the Company or any Subsidiary of the Companyherein as a “Material Contract”. (bii) Collectively, the contracts set forth in Section 4.16(a) All Material Contracts are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effecteffect in all material respects. The Company is not, subject, as to enforceability, to Creditors’ Rights. Except as would and has not reasonably be expected to have, individually received any written notice or in the aggregate, a Company Material Adverse Effect, neither the Company nor has any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is Knowledge that any other party to any such Company Contract is, in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company such Material Contract, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a material default.

Material Contracts. (a) Section 4.16(aSchedules 2.15(a)(i) through (xx) of the Company Disclosure Letter sets set forth a true and complete list, as list of each of the date of this Agreementfollowing Contracts to which the Company is a party, of:in each case identified by the applicable sub-section (“Material Contracts”): (i) Each merger, business combination, acquisition, purchase, sale any Contract providing for payments by or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result Seller in the receipt of or making of future payments period since January 1, 2008 in excess an aggregate amount of $100,00010,000 or more; (ii) each contract any Contract with any advertiser or agency for the purchase, licensing, or sale of any Company Products or other advertising or services, including ad insertion orders, click through agreements, or other purchasing arrangements; (iii) any Contract with any publisher with respect to the publication or display of Company Products or other advertising, and any Contract granting any third party the right to market or sell any Company Products, or relating to the advertising or promotion of the business of the Company or pursuant to which any third parties advertise on any websites operated by the Company; (iv) (1) any joint venture Contract, (2) any Contract that grants involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons (other than Contracts with Publishers identified in response to Section 2.15(a)(ii) or (3) any right Contract that involves the payment of first refusal royalties to any other Person; (v) any Contract for or right relating to the employment or service of first offer any director or officer or any other type of Contract with any of its directors or officers, as the case may be; (vi) any agreement pursuant to which any other party is granted exclusive rights or “most favored party” rights of any type or scope with respect to any of the Company Products or Company Intellectual Property, or containing any non-competition covenants or other restrictions relating to the Company Products or Company Intellectual Property; or that limits the ability freedom of the CompanyCompany to engage or participate, or compete with any other Person, in any line of business, market or geographic area with respect to the Company Products or Company Intellectual Property, or to make use of any Company Intellectual Property Rights; (vii) other than “shrink wrap” and similar generally available commercial end-user licenses to software that have an individual acquisition cost of $1,000 or less, all licenses, sublicenses and other Contracts to which Seller is a party and pursuant to which Seller acquired or is authorized to use any Third Party Intellectual Property Rights used in the development, marketing or licensing of the Seller Products; (viii) any license, sublicense or other Contract to which Seller is a party and pursuant to which any Person is authorized to use any Company Intellectual Property; (ix) any license, sublicense or other Contract pursuant to which Company has agreed to any restriction on the right of Company to use or enforce any Company Owned Intellectual Property Rights or pursuant to which Company agrees to encumber, transfer or sell rights in or with respect to any Company Owned Intellectual Property Rights; (x) any Contracts relating to the membership of, or participation by, the Company in, or the affiliation of the Company with, any Subsidiary industry standards group or association; (xi) any Contract providing for the development of any of the any software, technology or Intellectual Property Rights, independently or jointly, either by or for Company (other than employee invention assignment agreements and consulting agreements with Authors on Company’s standard form of agreement, copies of which have been made available to Acquirer’s counsel); (xii) any confidentiality, secrecy or non-disclosure Contract other than any such Contract entered into by Seller in the ordinary course of business consistent with past practice; (xiii) any Contract to license or authorize any third party to manufacture or reproduce any of the Company Products or Company Intellectual Property; (xiv) any agreement containing any support, maintenance or service obligation or cost on the part of Company; (xv) any settlement agreement; (xvi) any Contract pursuant to which rights of any third party are triggered or become exercisable, or under which any other consequence, result or effect arises, in connection with or as a result of the execution of this Agreement or the consummation of the Merger or other transactions contemplated hereunder, either alone or in combination with any other event; (xvii) any Contract pursuant to which the Company agrees to provide any Intellectual Property or other indemnity that is not capped at the fees paid or payable to the Company; (xviii) any Contract or plan (including any stock option, merger and/or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or any other securities of the Company or any of their respective Affiliates options, warrants, convertible notes or other rights to own, operate, sell, transfer, pledge purchase or otherwise dispose acquire any such shares of any businessesstock, other securities or assets (options, warrants or other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereofrights therefor, except for the repurchase rights disclosed on Schedule 2.2(a) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000Disclosure Letter; (ivxix) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time Contract with less than two days’ notice and without financial liability to the Company any labor union or any of collective bargaining agreement or similar contract with its Subsidiariesemployees; (vxx) each contract containing any non-competeContract with any Governmental Entity, non-solicitany Company Authorization, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or Contract with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officersgovernment prime contractor, or employees of the Company higher-tier government subcontractor, including any indefinite delivery/indefinite quantity contract, firm-fixed-price contract, schedule contract, blanket purchase agreement, or any of its Subsidiaries; task or delivery order (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyGovernment Contract”). (b) Collectively, the contracts set forth Unless otherwise provided in Section 4.16(a2.15(b) of the Company Disclosure Letter, all Material Contracts are herein referred in written form. The Company has performed all of the obligations required to as the “Company Contracts.” Except as would not reasonably be expected performed by it and, subject to havecompliance by third parties, individually or in the aggregateis entitled to all benefits under, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding not alleged to be in default in respect of, any Material Contract. Each of the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and Material Contracts is in full force and effect, subjectsubject only to the effect, as if any, of applicable bankruptcy and other similar laws affecting the rights of creditors generally and rules of law governing specific performance, injunctive relief and other equitable remedies. There exists no default or event of default or event, occurrence, condition or act, with respect to enforceabilitythe Company or to the Company’s knowledge, with respect to Creditors’ Rights. Except as any other contracting party, which, with the giving of notice, the lapse of time or the happening of any other event or condition, would not reasonably be expected to have, individually (i) become a default or in the aggregate, a Company Material Adverse Effect, neither the Company nor any event of its Subsidiaries is in breach or default under any Company Material Contract noror (ii) give any third party (A) the right to declare a default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the knowledge right to accelerate the maturity or performance of any obligation of the CompanyCompany under any Material Contract, is or (D) the right to cancel, terminate or modify any Material Contract. The Company has not received any notice or other party communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any such Material Contract. The Company Contract in breach or default thereunderhas no Liability for renegotiation of Government Contracts. Complete Correct and accurate complete copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) Material Contracts have been furnished to or otherwise made available to Parent. Neither Acquirer prior to the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company ContractAgreement Date.

Material Contracts. (a) Section 4.16(a) 5.19 of the Company Disclosure Letter sets forth lists the following Contracts to which the Company or any of its Subsidiaries is a true party or is otherwise bound by (each such Contract, a “Company Material Contract”): (i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (ii) any Contract containing covenants binding upon the Company or any Subsidiary of the Company that (A) materially restricts the ability of the Company or any Subsidiary of the Company (or which, following the consummation of the Offer or the Merger, could materially restrict the ability of the Surviving Corporation) to compete (1) in any business that is material to the Company and complete listits Subsidiaries, taken as a whole, as of the date of this Agreement, of:(2) with any person or (3) in any geographic area or (B) could require the disposition of any material assets or line of business of the Company or any of its Subsidiaries, in each case except for any such Contract that may be cancelled without penalty by the Company or any of its Subsidiaries upon notice of 60 days or less; (iiii) Each mergerany Contract with respect to a joint venture, partnership or similar arrangement; (iv) any Contract (other than vendor Contracts for the purchase of merchandise for resale) pursuant to which the Company or any of its Subsidiaries made or received payments of more than $25 million during the 12-month period prior to the date hereof, with material payment obligations remaining to be performed by the Company after the date of this Agreement; (v) any Contract (A) that is a “requirements” Contract entered into with a vendor for the purchase of merchandise for resale or (B) under which the consummation of the Transactions would give rise to a third party having a right of termination, amendment, acceleration or cancellation thereunder; (vi) any loan, credit, security or pledge agreement, debenture or similar Contract pursuant to which any indebtedness of the Company or any of its Subsidiaries for borrowed money (other than ordinary course trade payables); (vii) any Contract relating to guarantees or assumptions of obligations of any third Person; (viii) any Contract pursuant to which the Company or any of its Subsidiaries disposed of or acquired, or agreed to dispose of or acquire, a material business combinationor, acquisitionany amount of material assets by the Company or any of its Subsidiaries, purchasewith material obligations remaining to be performed or material liabilities continuing after the date of this Agreement, sale or divestiture contract that contains representationsincluding, covenantswithout limitation, indemnities or other obligations (including any “earnoutearn out” or other contingent payment obligations) that would reasonably be expected to result in the receipt of , or making of future payments in excess of $100,000any indemnification obligations; (iiix) each contract that grants any right of first refusal material hedge, collar, option, forward purchasing, swap, derivative or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)similar Contract; (iiix) each contract relating to outstanding Indebtedness (any Contract with any director, officer, employee, consultant or commitments or guarantees in respect thereof) Affiliate of the Company or any of its Subsidiaries (whether incurredother than any Company Benefit Plan); (xi) any material Contract with any Governmental Entity; (xii) any Contract under which the Company is a lessee of, assumedor holds or uses, guaranteed any equipment, machinery, vehicle or secured other tangible personal property owned by any asset) a Person which requires aggregate future payments equal to or in excess of $50,0005 million; (ivxiii) each employment contract to any Contract for capital expenditures or the acquisition or construction of fixed assets which the Company or a Subsidiary requires future payments in excess of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries$10 million; (vxiv) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract Contract pursuant to which the Company or any Subsidiary of the Company may be obligated (A) is granted or obtains any right to issue or repurchase use any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party material Intellectual Property Rights (other than Contracts granting rights to use commercial-off-the-shelf Software), (B) is restricted in its right to use or register any material Company Owned Intellectual Property Rights or (C) permits any other Person to use, enforce or register any material Company Owned Intellectual Property Rights, including any license agreements, coexistence agreements, and covenants not to xxx, other than Contracts with suppliers, manufacturers, distributors and other service providers entered into in the ordinary course of business consistent with past practice; and (xv) any amendment, supplement or modification of a Contract described in clauses (i) through (xiv) or any binding commitment or binding agreement to enter into any of such agreement solely between or among Contract. (i) Each Company Material Contract is valid and binding on the Company and is in full force and effect, and, to the Knowledge of the Company, is valid and binding on the other parties thereto (in each case subject to the Bankruptcy and Equity Exception), (ii) each of the Company and its wholly-owned Subsidiaries); Subsidiaries has in all material respects performed all obligations required to be performed by it under each Company Material Contract and (viiiiii) each contract between no event or among the Company condition exists which constitutes or, after notice or any Subsidiary lapse of the Companytime or both, would constitute a material breach or default on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) part of the Company or any of its Subsidiaries or under any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding Contract. To the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge Knowledge of the Company, is any no other party to any such Company Material Contract is in material breach or default thereunder. Complete and accurate copies , nor does any condition exist that with notice or lapse of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to time or otherwise made available to Parentboth would constitute a material breach or default by any such other party thereunder. Neither the Company nor any of its Subsidiaries has received any written notice, or to the Knowledge of the Company, oral notice, of termination or cancellation under any Company Material Contract, received any notice of any material violation of breach or material default under any Company Material Contract that has not been cured, or granted to any third party any rights, adverse or otherwise, that would constitute a material breach of any Company Material Contract. The Company has furnished or otherwise made available to Parent true and correct copies of all Company Material Contracts in effect as of the date of this Agreement.

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as As of the date of this Agreement, of: except for this Agreement or the Company Benefit Plans, neither the Company nor any of its Subsidiaries is a party to or bound by: (iA) Each merger, business combination, acquisition, purchase, sale any Contract relating to indebtedness for borrowed money or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments any financial guaranty in excess of $100,000; ; (iiB) each contract that grants any right of first refusal or right of first offer or Contract that limits the ability of the CompanyCompany or any of its Subsidiaries to compete in any business line or in any geographic area; (C) any Contract that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any Subsidiary other derivative financial instrument; (D) any Contract that involved expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $2 million in the last fiscal year or is expected to involve expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $2 million in the next fiscal year; (E) any Contract that involved, since January 1, 2004, the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another person (other than acquisitions or dispositions of assets in the ordinary course of business, including acquisitions and dispositions of inventory); (F) any Contract that by its terms limits the payment of dividends or other distributions by the Company or any of its Subsidiaries; (G) any material joint venture or partnership Contract; (H) any Contract that purports to limit the ability of the Company or any of their respective Affiliates its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities material amount of assets or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time business; and (BI) under which it is reasonably expected the Company or any of its Subsidiaries will Contract deemed to be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange Act) not otherwise SEC (all contracts of the type described in this Section 4.16(a4.19(a) with respect (being referred to the herein as “Company or any Subsidiary of the CompanyMaterial Contracts”). (b) CollectivelySection 4.19(b) of the Company Disclosure Schedule sets forth a true and complete list of the Company Material Contracts. True, correct and complete copies have been made available to Parent of all Company Material Contracts to which the contracts set forth Company or any of its Subsidiaries is a party; provided, however, that the Company need not provide to Parent any Company Material Contracts or portions thereof that contain confidentiality provisions or are otherwise subject to restrictions on disclosure including, without limitation, restrictions relating to security clearance. (c) Neither the Company nor any Subsidiary of the Company nor, to the knowledge of the Company, any other party, is in Section 4.16(a) are herein referred to material breach of or material default under the terms of any Contract that would qualify as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiariespursuant to Section 4.19(a)(A), each Company Contract is legal(C), valid(D), binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is (G) or (I) (each, a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights“Specified Contract”). Except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, neither the Company nor any Subsidiary of its Subsidiaries is in breach or default under any the Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract party, is in material breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under the terms of any Company Material Contract that is not a Specified Contract. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, each Specified Contract, and, except as would not reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract that is not a Specified Contract or a Contract of the type referred to in Section 4.19(a)(B) or (H), is a valid and binding obligation of the Company or the Subsidiary of the Company which is party thereto and, to the knowledge of the Company, of each other party thereto, and is in full force and effect, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets Except as set forth on Schedule 4.2(n), neither Proton nor TD is a true and complete list, as of the date of this Agreement, ofparty to or bound by any: (i) Each merger, business combination, acquisition, purchase, sale Contract that requires future payments by Proton or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result TD of more than $250,000 in the receipt aggregate for both of or making of future payments them in excess of $100,000any twelve (12) month period; (ii) each contract that grants any right loan agreement, letter of first refusal credit, mortgage, note, guarantee of Indebtedness or right other instrument evidencing Indebtedness of first offer Proton or TD; (iii) real property lease, sublease or license of Proton or TD (a “Real Property Lease”) (iv) Contract that limits or purports to limit the ability of the CompanyProton, any Subsidiary of the Company TD or any of their respective Affiliates to owncompete in any way in any line of business, operate, sell, transfer, pledge with any particular Person or otherwise dispose of in any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiariesjurisdiction; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts Contract entered into which purports to limit the ability of the Company Proton, TD or any of its Subsidiaries (including Parent upon consummation of the Transactions) their respective Affiliates to compete hire or otherwise engage in any line of business or with any Person or geographic areasolicit Persons for employment; (vi) each contract pursuant to which Contract that grants any form of Encumbrance over an asset of Proton or TD (other than those granted in the Company or any Subsidiary ordinary course of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notesbusiness consistent with past practice); (vii) each partnershipEmployment agreement, joint venture, limited liability company, grantor trust, strategic alliance severance agreement or other agreement that requires payments upon a “change in control” or similar agreement payments or Contract covering any employee or former employee of Proton or TD that, individually or collectively, could give rise to which the Company payment of any amount that would not be deductible by Proton or a Subsidiary TD by reason of, or constitute an “excess parachute payment” under, Section 280G of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries)Code; (viii) each contract between Severance, separation, termination or among the Company employment agreement which would require Purchaser to assume any obligation to make payments to any current or any Subsidiary former employee following termination of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other handemployment; (ix) each contract Employment agreement, independent contractor agreement, agreement with any employment agency, leasing agency or professional employment organization that obligates would limit Purchaser’s ability to terminate the Company employment or services of any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiariesindividual at will; (x) each material vendorcollective bargaining agreement or other agreement or arrangement with a labor union, supplier labor organization, workers council or third party consulting other similar body; (xi) Contract that provides for the services of any distributor, dealer, sales representative or similar contract not otherwise described arrangement; (xii) Contract for the future purchase of supplies, materials or equipment, including, without limitation, any concession agreement, that is in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs an amount in excess of $50,000 following the Effective Time; and500,000; (xixiii) each “material contract” Contract under which Proton or TD has guaranteed the Liabilities of, or indemnified, any Person; (as such term is defined xiv) Contract that relates in Item 601(b)(10whole or in part to Proton’s or TD’s Intellectual Property Rights; (xv) partnership, joint venture or other similar agreements or arrangements; (xvi) any other Contract for amounts in excess of Regulation S-K under $250,000 entered into other than in the Exchange Act) not otherwise ordinary course of business (the Contracts described in this Section 4.16(a) clauses (i)-(xiv), together with respect all amendments, exhibits and schedules to such Contracts, being the Company or any Subsidiary “Material Contracts”). Each of the Company. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and Contracts is in full force and effecteffect and is the legal, subjectvalid and binding obligation of Proton, as to enforceabilityand, to Creditors’ Rightsthe Knowledge of the Seller and Proton, of the other parties thereto, enforceable against each of them in accordance with its terms. Except as would not reasonably be expected with respect to have, individually any defaults of Proton or in Seller under the aggregate, a Company Material Adverse Effectsecurities purchase agreement and the related loan and other documents of Seller and Proton with Perseus, neither the Company Proton nor any of its Subsidiaries TD is in breach or default under any Company Contract Material Contract, nor, to the knowledge Knowledge of the CompanySeller and Proton, is any other party to any such Company Material Contract in breach of or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.

Material Contracts. (a) Section 4.16(a) 2.10 of the Company Disclosure Letter sets forth Schedule is a true correct and complete list, as list of the date of this Agreementfollowing currently effective Company Contracts (each, of:a “Company Material Contract” and, collectively, “Company Material Contracts”): (ia) Each merger, business combination, acquisition, purchase, sale or divestiture contract each Company Contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in constitutes the receipt of or making of future payments in excess of $100,000Company Leases and the Company Ancillary Lease Documents; (iib) each contract that grants any right Company Contract for the purchase of first refusal materials, supplies, goods, services, equipment or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or other assets (other than provisions requiring notice of or consent to assignment for annual payments by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries of, or pursuant to which in the last year the Company or any of its Subsidiaries paid, in the aggregate, $500,000 or more; (c) each Company Contract for the sale of materials, supplies, goods, services, equipment or other assets for annual payments to the Company of, or pursuant to which in the last year the Company or any of its Subsidiaries received, in the aggregate, $500,000 or more; (d) each Company Contract that relates to any partnership, joint venture, strategic alliance or other similar Contract; (e) each Company Contract relating to Indebtedness for borrowed money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset), except for Contracts relating to Indebtedness in an amount not exceeding $500,000 in the aggregate; (f) each Company Contract that provides for any employment, severance, retention, transaction bonus, change in control, consulting or other similar agreement between: (i) the Company or any of its Subsidiaries, on the one hand, and (ii) any employee, director or other individual service provider of the Company or its Subsidiaries, on the other hand, other than any such Contract that is terminable “at will” or without any obligation in excess of $50,000100,000 on the part of the Company or any of its Subsidiaries to make any severance, bonus, termination, change in control or similar payment or to provide any other benefit with a value in excess of $100,000 (other than benefits required to be provided by applicable Law); (ivg) each employment contract to Company Contract which by its terms limits in any respect (i) the localities in which all or any significant portion of the business and operations of the Company or a Subsidiary any Affiliate of the Company is a party other than employment contracts (which will include Parent after the Effective Time), or (ii) the right of the Company or any Affiliate of the Company (which will include Parent after the Effective Time) to compete with any Person; (h) each Company Contract in respect of any Company Intellectual Property that can be terminated at provides for annual payments of, or pursuant to which in the last year the Company or any time with less than two days’ notice and without financial liability to of its Subsidiaries paid or received, in the aggregate, $500,000 or more; (i) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of the Company or any of its Subsidiaries; (vj) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or Contract with any Person or geographic areaGovernmental Authority; (vik) each contract pursuant to which the Company Contract with (a) an executive officer or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” such executive officer’s or “director’s immediate family” members family members, (as such terms are defined in Rule 12b-2 and Rule 16a-1 b) an owner of more than five percent (5%) of the Exchange voting power of the outstanding capital stock of the Company, or (c) to the Knowledge of the Company, any “related person” (within the meaning of Item 404 of Regulation S-K under the Securities Act) of any such officer, director or owner (other than the Company or any of its Subsidiaries), on the other hand; (ixl) each contract Company Contract that obligates gives rise to any material payment or benefit as a result of the performance of this Agreement or any of the other Contemplated Transactions; (m) each Company Contract relating to the acquisition or disposition of any material interest in, or any material amount of, property or assets of the Company or any of its Subsidiaries or for the grant to indemnify any past or present directors, officers, or employees Person of the Company or any preferential rights to purchase any of its Subsidiaries;assets, other than in the Ordinary Course of Business; or (xn) any other each material vendor, supplier Company Contract (or third party consulting group of related agreements) the performance of which requires aggregate payments to or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected from the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and 500,000. The Company has delivered or made available to Parent accurate and complete (xiexcept for applicable redactions thereto) each “material contract” (copies of all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that are not in written form. Except as such term is defined in Item 601(b)(10) set forth on Section 2.10 of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or Disclosure Schedule, neither the Company nor any Subsidiary of Parent has, nor, to the Knowledge of the Company. (b) Collectively, any other party to a Company Material Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the contracts set forth material terms or conditions of any Company Material Contract in Section 4.16(a) are herein referred to as the “Company Contracts.” Except such manner as would not permit any other party to cancel or terminate any such Company Material Contract, which has had or would reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding Effect. As to the Company and each of its Subsidiaries), as of the date of this Agreement, each Company Material Contract is legal, valid, binding binding, enforceable and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subjectsubject to: (i) Laws of general application relating to bankruptcy, as to enforceabilityinsolvency and the relief of debtors; and (ii) rules of Law governing specific performance, to Creditors’ Rightsinjunctive relief and other equitable remedies. Except as would The consummation of the Contemplated Transactions will not reasonably be expected to have, individually (either alone or upon the occurrence of additional acts or events) result in the aggregate, a Company Material Adverse Effect, neither any material payment or payments becoming due from the Company nor or the Surviving Corporation to any of its Subsidiaries is in breach or default Person under any Company Material Contract nor, or give any Person the right to terminate or materially alter the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice provisions of any material violation of or material default under any Company Material Contract.

Material Contracts. (a) Except as disclosed in Section 4.16(a) 3.18 of the Company Disclosure Letter sets forth Letter, neither the Company nor any of its subsidiaries or Affiliated Entities is a true and complete list, as of the date of this Agreement, of: party to or bound by (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item item 601(b)(10) of Regulation S-K S‑K promulgated under the Exchange Securities Act), (ii) not otherwise described any contract that materially restricts the Company or any of its subsidiaries of Affiliated Entities (or purports to restrict their respective affiliates) from engaging or competing in this Section 4.16(aany line of business or in any geographic area, or which would so restrict the Company or any of its subsidiaries or Affiliated Entities (or purports to restrict their respective affiliates) with respect following a change in control of the Company, (iii) any partnership, joint venture or other similar agreement or arrangement to which the Company or any of its subsidiaries or Affiliated Entities is a party and that is material to the Company or any Subsidiary of its subsidiaries or Affiliated Entities, (iv) any customer contract that contains exclusivity or “most favored nation” obligations or similar restrictions binding on the Company or any of its subsidiaries or Affiliated Entities, (v) any contract granting any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any of its subsidiaries or Affiliated Entities to a person other than the Company or any of its subsidiaries or Affiliated Entities, (vi) any contract (other than those related to ordinary course of business employment or incentive arrangements that are listed on Section 3.14(a) of the Company Disclosure Letter) that involves any director, executive officer or 5% or greater shareholder of the Company or any of its subsidiaries or Affiliated Entities (or, to the knowledge of the Company. , any of his or her or its affiliates or associates), including all master services agreements and succession agreements involving any Affiliated Entity, (bvii) Collectivelyany license agreement or other material agreement (other than non-exclusive license agreements entered into with customers in the ordinary course of business consistent with past practice) related to Intellectual Property (each such contract, the contracts set forth in Section 4.16(a) are herein referred to as the a “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Material Contract”). Each Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding to which the Company and each or any of its Subsidiaries)subsidiaries or Affiliated Entities is a party or by which they are bound is (a) a valid and binding obligation of the Company or one of its subsidiaries or Affiliated Entities, each Company Contract as applicable, and, to the knowledge of the Company, is legal, valid, binding in full force and effect and enforceable against the other party or parties thereto in accordance with its terms on (except to the extent that any Company Material Contract expires or has expired in accordance with its terms), and each (b) to the knowledge of its Subsidiaries that is the Company, a party valid and binding obligation of the other parties thereto and is in full force and effecteffect and enforceable against such other parties in accordance with its terms, subjectexcept, as to enforceabilityin each case, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided, neither the Company nor any however, that (x) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (y) equitable remedies of its Subsidiaries is in breach or default under any Company Contract nor, specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the knowledge discretion of the Company, is court before which any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parentproceeding therefor may be brought. Neither the Company nor any of its Subsidiaries subsidiaries or Affiliated Entities has received written notice from any other party to a Company Material Contract that such other party intends to terminate, not renew or renegotiate in any material respect the terms of any material violation such Company Material Contract. Neither the Company nor any subsidiary or Affiliated Entity of the Company is in breach of or material default under the terms of any Company ContractMaterial Contract where such breach or default would have, individually or in the aggregate, a Company Material Adverse Effect. To the knowledge of the Company, no other party to any Company Material Contract is in material breach of or default under the terms of any Company Material Contract where such material breach or default would have, individually or in the aggregate, a Company Material Adverse Effect.

Material Contracts. (a) Section 4.16(a) of Neither the Company Disclosure Letter sets forth nor any of its Subsidiary is a true and complete listparty to or bound by any Contract: (i) which, as of the date of this Agreementhereof, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of and except as filed with the Company or any of their respective Affiliates to ownSEC Documents, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under promulgated by the Exchange ActSEC); (ii) not otherwise described that is reasonably expected to require the payment by the Company of a dollar amount in this Section 4.16(aexcess of $500,000 or extends for a period of 12 months or more (other than any contract or commitment that is terminable on 90 days or less notice without penalty or any confidentiality or non disclosure agreement); (iii) with respect employees and contracts with other consultants, which are reasonably expected to involve payments by the Company or any Subsidiary of more than annual compensation of $150,000; (iv) with respect to any joint venture or partnership arrangements, or with respect to any license or distribution agreement involving a sharing of profits, losses, costs or liabilities by the Company or any Subsidiary with any Third Party and relating to any product or planned product of the Company; (v) pursuant to which any Indebtedness of the Company or any of its Subsidiaries greater than $25,000 is or may be incurred other than the Loan Documents and any Contract between or among the Company and/or wholly-owned Subsidiaries of the Company, or pursuant to which the Company guarantees the performance of the obligations of any Third Party; (vi) relating to any pending acquisition or disposition by the Company or any of its Subsidiaries of properties or assets, except for acquisitions and dispositions of properties, assets and inventory in the ordinary course of business; (vii) limiting the ability of the Company or any of its Subsidiaries or their respective successors and assigns to compete in any line of business or with any Person or in any geographic area, or restricting the right of the Company and its Subsidiaries or their respective successors and assignes from selling or purchasing from any Person or hiring any Person or that provides for any standstill or similar obligations restricting the ability of the Company to purchase securities of any other entity; (viii) for the sale of goods or services to any Governmental Authority; (ix) providing for any contingent payments by the Company or any of its Subsidiaries exceeding $250,000 in any one case; (x) not entered into in the ordinary course of business between the Company or any of its Subsidiaries, on the one hand, and any Affiliate thereof other than any Subsidiary of the Company; or (xi) requiring a consent to, or otherwise containing a provision restricting a “change of control,” or that would reasonably be expected to prevent, delay or impair the consummation of the transactions contemplated by this Agreement. (b) CollectivelyEach Contract of the type described in Section 4.14(a), the contracts whether or not set forth in Section 4.16(a4.14(a) are herein of the Company Disclosure Schedule (including Contracts which would be required to be set forth in Section 4.14(a) of the Company Disclosure Schedule if such Contracts were not filed as exhibits to the Company SEC Documents), is referred to herein as the a “Company ContractsMaterial Contract.” ” (c) Except as for matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, neither (i) each Material Contract is a valid and binding obligation of the Company nor or a Subsidiary of the Company, as applicable, in full force and effect and enforceable against the Company or such Subsidiary in accordance with its terms, subject to the Bankruptcy and Equity Exceptions, and there is no breach, violation or default by the Company or any of its Subsidiaries is in breach or default under any Company of the Material Contracts, (ii) no Material Contract norhas been canceled by any other party thereto, (iii) to the knowledge of the Company, is any no other party to any such Company Contract is in breach or violation of, or default thereunder. Complete under, any Material Contract and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modificationsiv) have been furnished to or otherwise made available to Parent. Neither neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material a default under any Material Contract or of any event or condition which, after notice or lapse of time or both, will constitute a default on the part of the Company or any of its Subsidiaries under any Material Contract. As of the date hereof, true and correct copies of all Material Contracts (as amended or modified) are either publicly filed with the SEC or the Company has made available to Parent copies of such Contracts.

Material Contracts. (a) Section 4.16(a) 3.13 of the Company Disclosure Letter sets forth contains a true and complete list, as list of all of the date of this Agreement, of: following Contracts (iother than the Excluded Contracts) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants which any right of first refusal or right of first offer or that limits the ability of the Company, Companies is a party or by which any Subsidiary of the Company them or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities properties or assets are bound including, without limitation, Contracts to which one of the Companies is not currently a party but to which one of the Companies will be a party following the Reorganization (other than provisions requiring notice of or consent each such Contract, a “Material Contract”): (a) Contracts evidencing Indebtedness to assignment by any counterparty thereto)Person; (iiib) each contract relating Contracts pursuant to outstanding Indebtedness (or commitments or guarantees in respect thereof) which any of the Company Companies has directly or indirectly guaranteed Indebtedness of any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000other Person; (ivc) each employment contract to which the Company performance bonds or a Subsidiary letters of credit issued or posted by any of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice Companies, and without financial liability to the Company contract or any instrument under which such bonds or letters of its Subsidiariescredit were posted; (vd) each contract Contracts containing any non-compete, non-solicit, exclusivity or similar type of compete provision that materially restricts the ability or purports to restrict any of the Company Companies from engaging or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage competing in any line of business or with in any Person geographic area or geographic areacontains any exclusivity, most favored nation or similar covenant; (vie) each contract pursuant to which the Company or Contracts between any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the CompanyCompanies, on the one hand, and any officer, director or Affiliate of the Company’s Affiliates (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange ActSubsidiary), on the other hand, other than the Contracts that will be terminated or assigned prior to the Closing pursuant to Section 6.10 or Section 6.11; (ixf) each contract Contracts for the purchase, sale or use of Intellectual Property that obligates is material to conduct the Company or business of any of its Subsidiaries to indemnify any past or present directorsthe Companies, officers, or employees of the Company or any of its Subsidiariesother than Intellectual Property that is publicly available on standard commercial terms; (xg) each material vendortolling agreements relating to the generation and sale of electricity; (h) Contracts for the retail supply of electricity, supplier capacity, ancillary services, natural gas or third party consulting steam; (i) Contracts for the wholesale supply of electric power or similar contract not power products to local distribution companies or other customers; (j) Contracts for the transportation or storage of natural gas; (k) Contracts with transmission owners for the interconnection of the generating facilities owned by any of the Companies or otherwise described in this Section 4.16(afor the transmission of power (other than Contracts for transmission services provided under a tariff); (l) that Contracts for the purchase or construction of plant (A) cannot be voluntarily terminated pursuant including, without limitation, Contracts relating to its terms within 60 days after the Effective Time and (B) Delta Project), property or equipment, other than Contracts under which it the Dollar amount of the purchase is reasonably expected the Company less than $1,000,000; (m) Contracts involving a resolution or settlement of any of its Subsidiaries will be required to pay feesactual or threatened litigation, expenses arbitration, claim or other costs dispute and Contracts involving ongoing environmental remediation involving amounts in excess of $50,000 following 250,000; (n) Contracts involving a joint venture, partnership, strategic alliance, co-marketing, or similar agreement or providing for a loan or advancement to, or investment in, any Person; (o) a mortgage, pledge, security agreement, deed of trust or other instrument granting a Lien (other than a Permitted Lien) upon any Owned Real Property or Leased Real Property; (p) other than Contracts addressed by clause (l) above, Contracts obligating any of the Effective TimeCompanies to spend or purchase material, supplies, equipment or other assets or properties or services (other than purchase orders for inventory or supplies in the ordinary course of business) in excess of $500,000 in any twelve-month period; (q) Collective Bargaining Agreements; (r) Contracts for the employment of any officer, individual employee or other Person on a full-time or consulting basis or any change-in-control or severance payments that may be caused from the transactions contemplated by this Agreement; (s) Contracts that provide for the acquisition or disposition by any of the Companies of any Person, assets or business for consideration with a fair market value of more than $250,000 or indemnification or contribution by any of them or any of their Affiliates; (t) all operating and maintenance agreements, management agreements, administrative services agreements, long term service or parts agreements, and agreements with respect to the intake of water and the discharge of wastewater; (u) the Leases (other than such leases, subleases, licenses or occupancy agreements under which none of the Companies is the party thereto using or occupying the premises described therein) and Generating Plant Easements; and (xiv) any other Contract not addressed by clauses (a)-(u) above under which any of the Companies has a payment obligation in excess of $250,000. Assuming the due authorization, execution and delivery of such Material Contract by the other parties thereto, each “material contract” (as such term Material Contract constitutes a valid and binding obligation of, and is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to enforceable by, the Company or any Subsidiary its relevant Subsidiary, as the case may be, subject to the Bankruptcy and Equity Exception. To the knowledge of Parent, Holdings and the Company. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveeach Material Contract constitutes a valid and binding obligation of, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding against, the Company other parties thereto, subject to the Bankruptcy and each Equity Exception. None of its Subsidiaries)the Companies is in material violation or breach of any Material Contract, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto no event has occurred and is in full force continuing that after giving of notice, the lapse of time or both would become a material violation or breach thereunder or give the other party the right to terminate or accelerate any obligation thereunder; and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of Parent, Holdings and the Company, is any no other party to any such Company Material Contract in breach has materially violated or default thereunder. Complete breached any Material Contract, and accurate copies no event has occurred and is continuing that after giving of each Company Contract in effect as notice, the lapse of the date hereof (including all amendments and modifications) have been furnished to time or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any both would become a material violation of or material default under breach thereunder or give any Company Contractother party the right to terminate or accelerate any obligation thereunder.

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as As of the date of this Agreement, ofthe Company and its Subsidiaries are not a party to or bound by any Contract: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected required to result in be filed by the receipt Company as a material contract pursuant to Item 601(b)(10) of or making Regulation S-K of future payments in excess of $100,000the SEC; (ii) each contract that grants is or creates a Partnership with any right of first refusal or right of first offer other Person that is material to the Company and its Subsidiaries, taken as a whole, or that limits relates to the ability formation, operation, management or control of any such Partnership; (iii) that (A) is an indenture, credit agreement, loan agreement, security agreement, guarantee of, note, mortgage or other agreement providing for indebtedness (including obligations under any capitalized leases) in excess of $1,500,000 (other than agreements between the Company, Company and any wholly owned Subsidiary of or between wholly owned Subsidiaries) or pursuant to which the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose its Subsidiaries guarantees any such indebtedness of any businesses, securities or assets other Person (other than provisions requiring notice the Company or another wholly owned Subsidiary), (B) materially restricts the Company’s ability to incur indebtedness or guarantee the indebtedness of others, (C) grants a Lien (other than a Permitted Lien) or consent restricts the granting of Liens on any property or asset of the Company or its Subsidiaries that is material to assignment by the Company and its Subsidiaries, taken as a whole, or (D) is an interest rate derivative, currency derivative or other hedging contract other than foreign currency cash flow xxxxxx entered into in the ordinary course of business and classified as cash flow xxxxxx for accounting purposes; (iv) that is a Contract (other than this Agreement) for the acquisition of any counterparty theretocorporation, partnership or limited liability company or business, or sale of any of its Subsidiaries or businesses after the date hereof, in each case with a fair market value or purchase price (including assumption of debt) in excess of $5,000,000 (other than (x) in the ordinary course of business or (y) intercompany agreements); (iiiv) each that is a Contract (including any Contract providing for the outsourcing, contract relating to outstanding Indebtedness manufacturing, testing, assembly or fabrication (as applicable of any products, technology or commitments or guarantees in respect thereof) services of the Company or any of its Subsidiaries)) under which the Company and its Subsidiaries (whether incurred, assumed, guaranteed have made or secured by any asset) received payments in excess of $50,0001,000,000 in the fiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or the two quarter period ended June 27, 2015; (ivvi) each employment contract that is a dealer, distributor, OEM (original equipment manufacturer), VAR (value added reseller), sales representative or similar Contract under which any third party is authorized to sell, sublicense, lease, distribute, market or take orders for the Company Products (A) with a third party that is one of the Company’s top twenty (20) customers by revenue in fiscal year 2014 or 2015 or (B) under which the Company and its Subsidiaries have made or received payments in excess of $1,000,000 in the fiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or the two quarter period ended June 27, 2015; (vii) with respect to the acquisition or disposition of any corporation, partnership, limited liability company or business (whether by merger, amalgamation, consolidation or other business combination, sale of assets, sale of capital stock, tender offer, exchange offer, or similar transaction) pursuant to which the Company or any of its Subsidiaries has (A) material continuing indemnification obligations (and was entered into after March 1, 2005), or (B) any “earn-out” or similar contingent payment obligations in excess of $5,000,000 (other than any Contract that provides solely for the acquisition of inventory, raw materials or equipment in the ordinary course); (viii) that contains a Subsidiary right of first refusal, first offer, or first negotiation, or a call or put right, with respect to any asset that is material to the Company and its Subsidiaries, taken as a whole; (ix) that prohibits or restricts the payment of dividends or distributions in respect of the Company Company’s shares or capital stock; (x) that is a party purchase or sale agreement with any Significant Customer or Significant Supplier under which the Company and its Subsidiaries have made or received payments in excess of $1,000,000 in the fiscal year ended December 28, 2013, the fiscal year ended December 27, 2014, or the two quarter period ended June 27, 2015; (xi) under which (A) any person (other than employment contracts that can be terminated at the Company or any time with less than two days’ notice and without financial liability to of its wholly owned Subsidiaries) is guaranteeing any liabilities or obligations of the Company or any of its Subsidiaries; , or (vB) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic areahas “take-or-pay” obligations; (vixii) each contract pursuant to which that is between the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officerof the Company’s or its Subsidiaries’ respective directors or officers or stockholders who own five percent (5%) or more of the Company Common Stock, director other than (A) any Benefit Plan or Affiliate any other employee agreements or arrangements, (B) transactions conducted on an arms’ length basis or (C) any agreements with consideration of less than $200,000; (xiii) providing for the creation or imposition of any Lien, other than a wholly-owned Subsidiary Permitted Lien, with respect to any assets (including Intellectual Property or other intangible assets) material to the conduct of the Company) business of the Company or any of and its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act)currently conducted, on the other handtaken as a whole; (ixxiv) each contract that obligates is a settlement, conciliation or similar agreement (x) with any Governmental Entity which (A) materially restricts or imposes material obligations upon the Company or its Subsidiaries, or (B) materially disrupts the business of the Company and its Subsidiaries as currently conducted, or (y) which would require the Company or any of its Subsidiaries to indemnify pay consideration of more than $2,000,000 after the date of this Agreement; or (xv) with any past or present directors, officersGovernmental Entity, or employees for the purpose of fulfilling a Contract or order from any Governmental Entity as the ultimate customer, that is material to the conduct of the business of the Company and its Subsidiaries as currently conducted, taken as a whole. Each such Contract described in clauses (i)-(xv) or any of its Subsidiaries; (x) Section 4.8(c), together with each material vendorCompany License-In Agreement, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant is referred to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each herein as a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyMaterial Contract”. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither (i) each Material Contract is enforceable against the Company nor in accordance with its terms and, to the Knowledge of the Company, each other party thereto, and is in full force and effect and (ii) the Company or its Subsidiaries, on the one hand, and, to the Knowledge of the Company, each other party to each Material Contract, on the other hand, have performed all obligations required to be performed by it under such Material Contract and, to the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (A) constitute such a violation or breach, (B) give any Person the right to accelerate the maturity or performance of any Material Contract, or (C) give any Person the right to cancel, terminate or modify any Material Contract. (c) As of the date of this Agreement, the Company is not a party to or bound by any Contract that (i) contains any provisions materially restricting the right of the Company or any of its Subsidiaries is (A) to compete or transact in breach any business or default with any Person or in any geographic area, or (B) to acquire any material product or other asset or service from any other Person; (ii) grants exclusive rights to license, market, sell or deliver any Company Product; or (iii) contains any “most favored nation” or similar provisions in favor of the other party and relates (or would reasonably be expected to relate) to payments in excess of $1,000,000 in any of fiscal years 2014, 2015 or 2016. (d) (x) There are no licenses granted to third parties under any of the Contracts set forth in Section 4.8(d)(i), Section 4.8(d)(ii) or Section 4.8(d)(iii) of the Company Contract norDisclosure Schedule (collectively, the “Specified Contracts”), and (y) to the knowledge Knowledge of the Company, there are no other Contracts to which the Company or its Subsidiaries is any other party to any such Company Contract a party, in breach the case of clause (x) or default thereunder. Complete and accurate copies of each Company Contract in effect (y), that would, as a result of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither change of control of the Company nor contemplated by this Agreement, the Closing or the fact of Parent or any of its Subsidiaries has received written notice Affiliates (other than the Company or its Subsidiaries) becoming an Affiliate of the Company or any material violation of its Subsidiaries, grant to any third party a license or material default under any right to a license with respect to Parent’s or its Affiliates’ (excluding the Company Contractand its Subsidiaries) Intellectual Property following the Closing, in each case except as would not materially adversely impact Parent and its Affiliates’ (excluding the Company and its Subsidiaries) business.

Material Contracts. (a) Section 4.16(a) 4.11 of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of this Agreement, ofall Contracts of the following types to which the Company or any Company Subsidiary is a party or to which any of their respective assets or property are bound: (a) any Contract pursuant to which the Company or any Company Subsidiary has provided funds to or made any loan, capital contribution or other investment in, or assumed any liability or obligation of, any Person, including take-or-pay contracts or keepwell agreements; (b) any Contract with any Governmental Authority (other than any Statutory Plans) that involves an aggregate future or potential liability or payable, as the case may be, in excess of $350,000 or is otherwise material; (c) any Contract with any Related Person of the Company (other than any Company Plans or Statutory Plans); (d) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” that the Company would reasonably expect to prevent or delay the consummation of the transactions contemplated by this Agreement; (e) any Contract pursuant to which the Company is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company), (i) Each mergerany real property, business combinationor (ii) any tangible personal property and, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations in the case of clause (including “earnout” or other contingent payment obligationsii) that would reasonably be expected to result in involves an aggregate future or potential liability or receivable, as the receipt of or making of future payments case may be, in excess of $100,000; (iif) any Contract providing for indemnification or any guaranty by the Company or any Subsidiary thereof, in each contract case that grants is material to the Company and its Subsidiaries, taken as a whole, other than (A) any right guaranty by the Company or a Subsidiary thereof of first refusal any of the obligations of (1) the Company or right another wholly owned Subsidiary thereof or (2) any Subsidiary (other than a wholly owned Subsidiary) of first offer the Company that was entered into in the Ordinary Course of Business pursuant to or in connection with a customer Contract, or (B) any Contract providing for indemnification of customers or other Persons pursuant to Contracts entered into in the Ordinary Course of Business; (g) any Contract that limits contains any provision that requires the ability purchase of all or a majority of the Company’s or any of its Subsidiaries’ requirements for a given product or service from a given third party, which product or service is material to the Company and its Subsidiaries, taken as a whole; (h) any Contract relating to settlement or other final disposition of any Action since January 1, 2020; (i) any Contract that results in any Person holding a power of attorney from the Company or any of its Subsidiaries that relates to the Company, any Subsidiary of its Subsidiaries or their respective business other than in the Ordinary Course of Business; (j) any Contract for the purchase of any debt or equity security or other ownership interest of any Person, or for the issuance of any debt or equity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other ownership interests of, the Company or any Company Subsidiary; (k) any hedging, futures, options or other derivative Contract; (l) any mortgages, indentures, guarantees, loans, or credit agreements, security agreements, or other Contracts, in each case evidencing Indebtedness of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets Company Subsidiary (other than provisions requiring notice of any Company Plans or consent to assignment by any counterparty theretoStatutory Plans, in each case, that provide severance or other termination-related payments); (iiim) each contract any partnership, joint venture, limited liability company agreement or similar Contract relating to outstanding Indebtedness the formation, creation, operation, management, or control of any material joint venture, partnership, or limited liability company (other than any Organizational Documents of the Company or commitments the Company Subsidiaries); (n) any Contract that purports to materially limit or guarantees in respect thereof) restrict the rights of the Company or any of its Subsidiaries (whether incurredor, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to after the Company consummation of the First Merger or Second Merger, Parent or any of its Subsidiaries; ) (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the TransactionsA) to compete or otherwise engage in any line of business or business, (B) compete with any Person or geographic areasolicit any client or customer, or (C) operate in any geographical location; (vio) each contract pursuant to which the Company or any Subsidiary Contract that grants any right of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary first refusal, right of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officersfirst offer, or employees similar right with respect to any material assets, rights, or properties of the Company or any of its Subsidiaries; (xp) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) any Contract that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected obligates the Company or any of its Subsidiaries to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party or upon consummation of the First Merger or Second Merger will be required obligate Parent or any of its Subsidiaries to pay fees, expenses conduct business on an exclusive or other costs preferential basis or that contains a “most favored nation” or similar covenant with any third party; (q) any Contract that obligates the Company or any of its Subsidiaries to make any capital expenditures in any twelve month period in an amount in excess of $50,000 following 100,000 (other than purchasing activities in the Effective Time; andOrdinary Course of Business); (xir) each “material contract” any Contract relating to the future acquisition or disposition, directly or indirectly (as such term is defined in Item 601(b)(10) by merger, sale of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to stock, sale of assets, or otherwise), by the Company or any Subsidiary of its Subsidiaries of material operating assets (other than purchasing activities or inventory sales in the Ordinary Course of Business) or capital stock or other equity interest of another Person (other than the Company or a Company Subsidiary), other than (i) acquisitions pursuant to budgeted capital expenditures in the Ordinary Course of Business or (ii) acquisitions or dispositions that do not individually have a value in excess of $500,000; (s) any Collective Bargaining Agreement; (t) any employment, severance, retention, change in control, bonus or other Contract with any current or former Service Provider (1) that provides for payment of any cash or other compensation or benefits in connection with the consummation of the Company.transactions contemplated by this Agreement, other than any severance or termination payments and benefits, or (2) that expressly provides for the payment of severance or termination payments (other than (x) statutory severance benefits or termination payments or (y) only with respect to international offer letters or employment contracts, payments or benefits in lieu of notice) upon a termination of the applicable Service Provider’s employment; (bu) any IP Licenses; or (v) any other Contract, other than purchase orders entered into in the Ordinary Course of Business, Company Plans and Statutory Plans, that by its terms calls for aggregate payments or receipts by the Company and its Subsidiaries under such Contract of more than $100,000 over any twelve month period. Collectively, the contracts set forth in Contracts that are required to be listed on Section 4.16(a) 4.11 of the Company Disclosure Letter are herein referred to herein as the “Company Material Contracts.” ”. Except as would not reasonably be expected to haveset forth on Section 4.11 of the Company Disclosure Letter, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each its Subsidiaries are not party to or bound by any Material Contracts. The Company has made available to Parent correct and complete copies of its Subsidiaries)all Company Material Contracts, each Company including any amendments thereto. Each Material Contract is legalis, validsubject to the Equitable Exceptions, valid and binding and enforceable in accordance with its terms on the Company and/or its Subsidiaries, as applicable, and to the Company’s Knowledge, each of its Subsidiaries that is a other party thereto and is in full force and effecteffect and will continue to be in full force and effect on identical terms immediately following the Closing Date. Neither the Company, subjectany Company Subsidiary nor, to the Knowledge of the Company, any other party to any Material Contract is in breach or violation of, or default under, and there does not exist any event which, with the giving of notice or the lapse of time, would constitute a breach or default by the Company, any Company Subsidiary or, to the Knowledge of the Company, any other party under, any Material Contract, in each case except for such breaches, defaults and events as to enforceability, to Creditors’ Rights. Except as which requisite waivers or consents have been obtained or which would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect, neither reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, nor has the Company or any of its Subsidiaries is in breach or default under received any Company Contract nor, to the knowledge claim of the Company, is any other party to any such Company Contract in breach breach, violation or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contractdefault.

Material Contracts. (a) Section 4.16(aExcept as set forth on Schedule 4.1(r) of the Company Disclosure Letter sets forth Schedules or as disclosed in the Company Reports (including all exhibits thereto (including exhibits incorporated by reference therein)), neither the Company nor any of its Subsidiaries is a true and complete list, as of the date of this Agreement, ofparty to or otherwise bound by: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt any lease of or making of future personal property providing for annual rental payments in excess of $100,0001,000,000 or more or any lease of any material real property; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets agreement (other than provisions requiring notice purchase orders entered into in the ordinary course of business) for the purchase of materials, supplies, goods, services, equipment or consent to assignment other assets (including specifically-manufactured or unique parts) the terms of which provide for aggregate payments by any counterparty thereto)the Company and its Subsidiaries of $1,000,000 or more; (iii) each contract relating to outstanding Indebtedness any sales, distribution or other similar agreement (or commitments or guarantees other than purchase orders entered into in respect thereofthe ordinary course of business) of providing for the sale by the Company or any of its Subsidiaries of materials, supplies, goods, services, equipment or other assets that provides for aggregate payments to the Company and its Subsidiaries of $1,000,000 or more; (iv) any partnership, joint venture or other similar agreement or arrangement; (v) any agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise); (vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000); (ivvii) each employment contract to which any license, franchise or similar agreement that is not terminable by the Company without material penalty upon ninety (90) days or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiariesother party thereto; (vviii) each contract containing any non-compete, non-solicit, exclusivity agreement (or similar type of provision that materially restricts in an agreement) whose purpose is to limit the ability freedom of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to in any area and which limitation is material or which would so limit the freedom of the Company or any Subsidiary of its Subsidiaries after the Closing Date; (ix) any agreement with (A) any Person directly or indirectly owning, controlling or holding with power to vote, 5% or more of the outstanding voting securities of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in of its Subsidiaries, (B) any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party Person (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between 5% or among more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by the Company or any Subsidiary of the Company, on the one hand, and its Subsidiaries or (C) any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) officer of the Company or any of its Subsidiaries or any of their respective “associates” or members of the “immediate family” members (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company of any such director or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiariesofficer; (x) each any material vendor, supplier or agreement to indemnify a third party consulting other than any agreement entered into in the ordinary course of business consistent with past practices or similar contract not otherwise described any other agreement listed in this Section 4.16(aany sub-section of Schedule 4.1(r) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected of the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective TimeDisclosure Schedules; andor (xi) each “any other Contract not made in the ordinary course of business that is material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company and its Subsidiaries, taken as a whole. Each agreement, contract, plan, lease, arrangement or any commitment disclosed or required to be disclosed on Schedule 4.1(r) of the Company Disclosure Schedules (each, a “Material Contract”) is a valid and binding agreement of the Company or a Subsidiary of the Company. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to havecase may be, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete True and accurate complete copies of each Company Material Contract in effect as of the date hereof (including all any material modifications and amendments thereto and modificationsmaterial waivers thereunder) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written Subsidiaries, nor, to the knowledge of the Company, any other party thereto, is in material violation of, or in material default under, nor does there exist any condition that with notice or lapse of any time, or both, would cause such a material violation of or material default under under, any Company ContractMaterial Contract to which it is a party or by which it, or any of its properties or assets, is otherwise bound.

Material Contracts. (a) Section 4.16(a) For all purposes of the Company Disclosure Letter sets forth a true and complete list, as of the date of under this Agreement, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including a “earnoutMaterial Contract” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants shall mean any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of following to which the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge its Subsidiaries is a party or otherwise dispose of by which any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries are bound as of the date of this Agreement: (whether incurredi) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act; (ii) any Contract (or group of related Contracts with the same Person or its Affiliates), assumedother than any Lessor Lease and any other lease, guaranteed license or secured development, redevelopment or construction Contract, involving (A) the payment or receipt of amounts by the Company or any assetof its Subsidiaries of more than $1,000,000 in any calendar year or more than $5,000,000 in the aggregate or (B) future payments (including by way of acceleration) of more than $1,000,000 in any calendar year that are conditioned on, in whole or in part, or required in connection with, the consummation of any of the Transactions; (iii) any Contract relating to Indebtedness in excess of $50,0003,000,000 or mortgaging, pledging or otherwise placing a Lien on any of the assets of the Company or its Subsidiaries with a value in excess of $3,000,000, restricting the payment of dividends or other distributions of assets by any of the Company or its Subsidiaries or providing for the guaranty of Indebtedness of any Person in excess of $3,000,000; (iv) each employment contract any Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or a any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests or assets of any Person; (v) other than with respect to any wholly-owned Subsidiary of the Company, any partnership, limited liability company, joint venture, strategic alliance or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership, limited liability company, joint venture or strategic alliance that is material to the Company or any of its Subsidiaries, or in which the Company, directly or indirectly, owns more than a two percent voting or economic interest; (vi) except for indemnification, compensation, employment or other similar arrangements between the Company or any of its Subsidiaries, on the one hand, and any current or former director or officer thereof, on the other hand, any Contract to which the Company or any of its Subsidiaries is a party that would be required to be disclosed pursuant to Item 404 of Regulation S-K under the Securities Act in the Company’s Form 10-K or proxy statement pertaining to an annual meeting of stockholders; (vii) any Contract containing a standstill or similar agreement pursuant to which the Company or any of its Subsidiaries’ has ongoing obligations to not acquire assets or securities of any other than employment contracts party and, to the extent not entered into in the ordinary course of business or in connection with any Lessor Lease or other lease, license, development, redevelopment, construction or other commercial Contract, any Contract under which the Company or any of its Subsidiaries has material ongoing indemnification obligations; (viii) any Contract (A) that can would or would be terminated at reasonably expected to prevent or materially impede or delay the Company’s ability to consummate the Transactions or (B) under which a sale of a majority of the consolidated assets of the Company and its Subsidiaries, taken as a whole, would require a payment by, result in a breach or constitute a default by, or result in the termination, acceleration or loss of any time with less than two days’ notice and without financial liability to benefit of, the Company or any of its Subsidiaries; (vix) each contract containing any non-compete, non-solicit, exclusivity competition Contract or similar other Contract that (A) limits or purports to limit in any material respect the type of provision that materially restricts business in which the ability Company or its Subsidiaries (or, after the Effective Time, Parent or its Affiliates) may engage, or the manner or locations in which any of them may so engage in any business, (B) could require the disposition of any material assets or line of business of the Company or its Subsidiaries or, after the Effective Time, Parent or its Affiliates or (C) prohibits or limits the right of the Company or any of its Subsidiaries (including Parent upon consummation to use, transfer, license, distribute or enforce any of their respective Company Intellectual Property, other than limitations on enforcement arising from non-exclusive licenses of Company Intellectual Property entered into in the Transactions) to compete or otherwise engage in any line ordinary course of business or with any Person or geographic areabusiness; (vix) each any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial instrument, contract or arrangement, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, other than (i) Contracts related to the purchase of raw materials or inventory in the ordinary course of business (ii) Contracts relating to the hedging of utility expenses; (xi) any Contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company its Subsidiaries is a party (other than under which any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among third Person has granted to the Company or any Subsidiary of the Companyits Subsidiaries, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries has granted to any third Person, any license, covenant or other rights to or under Intellectual Property (other than software license agreements for any third-party off-the-shelf generally commercially available software for no fee or an aggregate license fee of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Actless than $500,000 per year), on the other hand; (ixxii) each contract any Contract that obligates provides for the acquisition or disposition, directly or indirectly (by merger or otherwise) of assets or capital stock (A) for aggregate consideration under such Contract in excess of $1,000,000 or (B) pursuant to which the Company or any of its Subsidiaries has continuing “earn-out” or other contingent payment obligations; (xiii) any Contract relating to indemnify settlement of any past administrative or present directorsjudicial proceedings, officersin each case, individually in excess of $1,000,000 or employees which otherwise provides for equitable relief, under which there are outstanding obligations (including settlement agreements) of the Company or any of its Subsidiaries; (xxiv) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant any Lessor Lease providing for annual payments to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time2,000,000 in aggregate annual base rent for calendar year 2015 and any Lessee Leases; and (xixv) each “material contract” (as such term is defined in Item 601(b)(10) any Contract, or group of Regulation S-K under related Contracts with the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company same Person or any Subsidiary of the Company. (b) Collectivelyits Affiliates, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as termination or breach of which would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto not disclosed pursuant to clauses “(excluding i)” through “(xiv)”above or any commitment or agreement to enter into any of the foregoing. (b) Section 3.12(b) of the Company Disclosure Letter sets forth a complete and each accurate list of all Material Contracts to which the Company or any of its Subsidiaries), each Company Subsidiaries is a party as of the date of this Agreement. True and complete copies of all such Material Contracts (including all exhibits and schedules thereto) have been (i) publicly filed with the SEC and are publicly available as of the date hereof or (ii) made available to Parent. (c) Each Material Contract is legal, valid, valid and binding and enforceable in accordance with its terms on the Company and (and/or each such Subsidiary of its Subsidiaries that is a the Company party thereto thereto) and, to the Knowledge of the Company, each other party thereto, and is in full force and effect, subjectenforceable against the Company or each such Subsidiary of the Company party thereto, as the case may be, in accordance with its terms, subject to enforceabilitythe Enforceability Limitations, and neither the Company nor any of its Subsidiaries that is a party thereto, nor, to Creditors’ Rightsthe Knowledge of the Company, any other party thereto, is in breach in any material respect of, or default in any material respect under, any such Material Contract, and no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder by the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any other party thereto, or permit termination, material modification or acceleration by any third party thereunder. Except as would not reasonably be expected to have, individually or in As of the aggregate, a Company Material Adverse Effectdate hereof, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received any written notice of termination or cancellation under any Material Contract or received any written notice of breach in any material violation of respect or any default in any material default respect under any Company ContractMaterial Contract which breach has not been cured.

Material Contracts. (a) Section 4.16(aSchedules 2.15 (a)(i) through (xx) of the Company Disclosure Letter sets set forth a true and complete list, as list of each of the date of this Agreement, of:following Contracts to which the Company or any Subsidiary is a party that are in effect on the Agreement Date (the “Material Contracts”): (i) Each mergerany Company Contract with a (A) Significant Customer or (B) Significant Supplier; (ii) any Contract under which the Company or any of the Subsidiaries committed to make future payments in excess of $1,000,000 over the life of the Contract, business combinationother than employment-related Contracts and Contracts with lawyers, acquisitionaccountants, purchasefinancial advisors and other similar professional service providers; (iii) any Company Contract with respect to a dealer, sale distributor, referral or divestiture contract similar agreement, or any Company Contract providing for the grant by the Company of rights to market or sell Company Products on behalf of the Company to any other Person (collectively, the “Reseller Agreements”); (iv) other than the Reseller Agreements, (A) any joint venture Contract or (B) any Contract that contains representationsinvolves a sharing of revenues, covenantsprofits, indemnities cash flows, expenses or losses with other Persons and (C) any Contract that involves the payment of royalties to any other Person, in each case, pursuant to which amounts have been received or delivered by the Company or any Subsidiary in an aggregate amount of $100,000 during the twelve (12) months preceding the Fiscal Year End Date; (v) any separation agreement or severance agreement with any current or former employees under which the Company or any Subsidiary had any actual, current Liability in an aggregate amount of $100,000 in cash or more during the twelve (12) months preceding the Agreement Date; (vi) any Contract for or relating to the employment or service of any director or officer or beneficial owner of more than 5% of the total shares of Company Capital Stock or any other type of Contract with any of its officers or beneficial owners of more than 5% of the total shares of Company Capital Stock, as the case may be; (vii) any material Contract pursuant to which the Company or any Subsidiary has agreed to grant a license of any Company-Owned Intellectual Property or express covenant not to xxx under any patents (other than non-exclusive licenses granted in the ordinary course); (viii) any Contract made available to Acquirer (A) pursuant to which any other party is granted exclusive rights, “most favored nations” pricing or “most favored customer” status or similar with respect to any of the Company Products, (B) containing any covenants by the Company not to compete with any other Person, in any line of business, market or geographic area with respect to the Company Products, or (C) that contain any rights of first refusal, negotiation or other obligations similar material business restriction on the Company’s rights to sell, distribute or manufacture any Company Products; (including ix) any Contracts (other than “earnoutshrink wrap” and similar generally available commercial end-user licenses to software that have an individual acquisition cost of $100,000 or other contingent payment obligationsless per annum) that would reasonably be expected pursuant to result which the Company or any Subsidiary is a party and pursuant to which the Company or any Subsidiary licenses any Third-Party Intellectual Property used in the receipt development or licensing of the Company Products, in each case, that is material to the business of the Company and its Subsidiaries, taken as a whole; (x) any material outsourced development or making joint development Contract providing for the development of future payments any material items of Company-Owned Intellectual Property on behalf of the Company; (xi) any Contracts relating to the membership of, or participation by, the Company or any Subsidiary in, or the affiliation of the Company or any Subsidiary with, any industry standards group or association which obligates the Company or any Subsidiary to license or contribute any material Company-Owned Intellectual Property; (xii) any Contract containing any indemnification, warranty, support, maintenance or service that represents a material obligation or material Liability on the part of the Company or any Subsidiary other than any such Contract entered into by the Company or any Subsidiary in the ordinary course of business consistent with past practice; (xiii) any settlement agreement with respect to any Legal Proceeding with an aggregate value in excess of $100,000; (iixiv) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, Contract with any Subsidiary of the Company labor union or any of their respective Affiliates to own, operate, sell, transfer, pledge collective bargaining agreement or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)similar contract with its employees; (iiixv) each contract relating to outstanding Indebtedness (any trust indenture, mortgage, promissory note, loan agreement or commitments other Contract for the borrowing of money, any currency exchange, commodities or guarantees in respect thereof) other hedging arrangement or any leasing transaction of the Company type required to be capitalized in accordance with GAAP; (xvi) other than for any intercompany loans and capital contributions and accounts payable to trade creditors and accrued expenses in the ordinary course, any Contract of guarantee, surety, support, assumption or endorsement of, or any similar commitment with respect to, the Liabilities or indebtedness of its Subsidiaries (whether incurredany other Person, assumedin each case, guaranteed or secured by any asset) with an aggregate value in excess of $50,000100,000; (ivxvii) each employment contract to which any Contract for capital expenditures in excess of $1,000,000 in the Company or a Subsidiary of aggregate entered into during the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to twelve (12) months preceding the Company or any of its SubsidiariesFiscal Year End Date; (vxviii) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract Contract pursuant to which the Company or any Subsidiary is a lessor or lessee of the Company may be obligated to issue or repurchase any Company Capital Stock real property or any capital stock machinery, equipment, motor vehicles, office furniture, fixtures or other equity interests personal property involving expenditures in any Subsidiary excess of the Company (including the Company Warrants and the Company Convertible Notes)$500,000 per annum; (viixix) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement any Contract pursuant to which the Company or any Subsidiary has acquired a Subsidiary material business or entity, or assets constituting a line of the Company is a party business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise, or any Contract pursuant to which it has any material ownership interest in any other Person (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries);; and (viiixx) each contract between or among any Contract with any U.S. Federal Governmental Entity. (b) All Material Contracts are in written form. To the Company or any Subsidiary knowledge of the Company, on each of the one handMaterial Contracts is in full force and effect, and any officersubject only to the effect, director or Affiliate (other than a wholly-owned Subsidiary if any, of the Enforceability Exceptions. To the knowledge of the Company) , as of the Company Agreement Date, there exists no default or any event of its Subsidiaries default or any of their respective “associates” event, occurrence, condition or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act)act, on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary or with respect to any other contracting party, that, with the giving of the Company. (b) Collectivelynotice, the contracts set forth in Section 4.16(a) are herein referred to as lapse of time or the “Company Contracts.” Except as happening of any other event or condition, would not reasonably be expected to have(i) become a material default or material event of default under any Material Contract or (ii) give any third party (A) the right to declare a material default or exercise any material remedy under any Material Contract, individually (B) the right to a material rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding right to accelerate the maturity or performance of any material obligation of the Company and each under any Material Contract, or (D) the right to cancel, terminate or modify any Material Contract. As of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectAgreement Date, neither the Company nor any of its Subsidiaries is in breach or default under Subsidiary has received any Company Contract norwritten notice or, to the Company’s knowledge of the Companyother communication, is regarding any other party actual, material violation or breach of, default under, or intention to cancel or modify any such Company Contract in breach or default thereunderMaterial Contract. Complete True, correct and accurate complete copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) Material Contracts have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company ContractAcquirer.

Material Contracts. (a) Except for this Agreement or as set forth in Section 4.16(a) 3.16 of the Company Disclosure Letter sets forth a true and complete listSchedules, as of the date of this AgreementAgreement Date, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary none of the Company or any of their respective Affiliates the Company Subsidiaries is a party to ownor bound by (each a “Company Material Contract”): (i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice those agreements and arrangements described in Item 601(b)(10)(iii); (ii) any Contract with a related person (as defined in Item 404 of or consent Regulation S-K of the Securities Act) that would be required to assignment by any counterparty thereto)be disclosed in the Company SEC Reports but has not been disclosed; (iii) each contract relating any Contract that contains a put, call, right of first refusal or similar right pursuant to outstanding Indebtedness (or commitments or guarantees in respect thereof) of which the Company or any Company Subsidiary could be required to purchase or sell, or offer for purchase or sale of its Subsidiaries any business, stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of $1,000,000; (iv) any Contract relating to the borrowing or lending of Indebtedness in a principal amount in excess of $500,000 (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000); (ivv) each employment contract any Contract that is a settlement, conciliation or similar agreement between the Company or any Company Subsidiary and any Governmental Authority pursuant to which the Company or a Company Subsidiary will be required after the date of the Company is a party other than employment contracts that can be terminated at this Agreement to pay any time with less than two days’ notice and without financial liability to material monetary obligations; (vi) any Contract between the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the CompanySubsidiary, on the one hand, and any officerthird Person, director on the other hand (A) materially limiting the freedom or Affiliate (other than a wholly-owned Subsidiary of the Company) right of the Company or any of its Subsidiaries Company Subsidiary (or, following the Closing, Parent or any of their respective its Affiliates) to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “associatesmost favored nations” or “immediate family” members terms and conditions (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ixincluding with respect to pricing) each contract that obligates granted by the Company or any of its Subsidiaries to indemnify any past or present directors, officersCompany Subsidiary, or employees (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of the Company or any of its Subsidiaries; Company Subsidiary (x) each material vendoror, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after following the Effective Time and (B) under which it is reasonably expected the Company Closing, Parent or any of its Subsidiaries will be required Affiliates) to pay feessolicit, expenses sell, distribute or manufacture any products or services or any technology or other costs in excess of $50,000 following the Effective Time; andassets to or for any other Person; (xivii) each “material contract” (as such term any Contract that requires by its terms or is defined in Item 601(b)(10) reasonably expected to require the payment or delivery by the counterparty thereto of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect cash or other consideration to the Company or any Company Subsidiary in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024 or by the Company or any Company Subsidiary in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024 and, in each case, (A) which cannot be cancelled by the Company or such Company Subsidiary without penalty or further payment without more than sixty (60) days’ notice and (B) excluding commercially available off-the-shelf software licenses and software-as-a-service offerings, in each case entered into in the ordinary course of business consistent with past practice; (viii) any Contract between the Company or any Company Subsidiary and a third Person (A) relating to the disposition of any assets or business of the Company and the Company Subsidiaries with a fair market value in excess of $2,000,000 or (B) relating to the acquisition of any assets or business of, or ownership interests in, any third Person with a fair market value in excess of $2,000,000, in each case of clauses (A) and (B), whether by merger, sale of stock or assets or otherwise, and that contains continuing indemnities or other material obligations or any continuing “earn-out” or other contingent payment obligation on the part of the Company or any Company Subsidiary; (ix) any Contract between the Company or any Company Subsidiary and any third Person that establishes a joint venture, partnership or limited liability company; (x) any Contract that by its express terms requires the Company or any Company Subsidiary, or any successor to, or acquirer of, the Company or any Company Subsidiary, to make any material payment to another Person as a result of a change of control of the Company or any such Company Subsidiary (a “Change of Control Payment“) or gives another Person a right to receive or elect to receive a Change of Control Payment; (xi) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of the Company or any Company Subsidiary, the pledging of the capital stock or other equity interests of the Company or any Company Subsidiary or the issuance of any guaranty by the Company or any Company Subsidiary; (xii) any Contract (excluding in each case Contracts entered into in the ordinary course of business consistent with past practice) pursuant to which (a) both (i) the Company or any Company Subsidiary is granted a license to, including any covenant not to sue under, any material Intellectual Property Right owned by any third party that is necessary for or used by the Company or any Company Subsidiary in their respective businesses as currently conducted, and (ii) that requires by its terms or is reasonably expected to require the payment or delivery by the Company or any Company Subsidiary in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024, or (b) both (i) the Company or any Company Subsidiary grants a third party a license to, including any covenant not to sue under, any material Company Intellectual Property and (ii) that requires by its terms or is reasonably expected to require the payment or delivery by the counterparty thereto of cash or other consideration to the Company or any Company Subsidiary in an amount having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024; (xiii) any CBA; (xiv) any Contract with any supplier that involved the payment of more than $1,000,000 in the Company’s last fiscal year; (xv) any material Contract with any university or other academic institution, research center, international organization or Governmental Authority having an expected value in excess of $1,000,000 in the fiscal year ending December 31, 2024, or in any single fiscal year thereafter, other than any sponsored research agreements, clinical trial site agreements, material transfer agreements, sponsorship agreements or grant agreements entered into in the ordinary course of business; (xvi) any Contract that indemnifies any director or executive officer of the Company or any Company Subsidiary (other than any indemnification provisions set forth in the certificate of incorporation or bylaws or comparable governing documents of the Company or any Company Subsidiary or Contracts entered into on substantially the same form as the Company’s standard forms previously made available to Parent) or (xvii) any Contract that requires any capital commitment or capital expenditure (or series of capital expenditures) by the Company or any Company Subsidiary after the date hereof in an amount in excess of $2,000,000 in the aggregate. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would has not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect had and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither each of the Contracts to which the Company or any of the Company Subsidiaries is a party is in full force and effect, and represents a valid and binding obligation of the Company or a Company Subsidiary, enforceable in accordance with its terms against the Company or the Company Subsidiary (as the case may be) and, to the Knowledge of the Company, any other party thereto, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in Law or equity). Neither the Company nor any of its Subsidiaries Company Subsidiary is in breach of or default default, with or without notice, lapse of time or both, under any Contract to which the Company Contract or any of the Company Subsidiaries is a party, nor, to the knowledge of the Company’s Knowledge, is any other party to any such Company Contract in Contract, excluding, however, any breach or default thereunder. Complete and accurate copies of each which has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company ContractMaterial Adverse Effect.

Material Contracts. (a) Except for (i) this Agreement and (ii) any Contracts disclosed in the Company SEC Documents, Section 4.16(a4.21(a) of the Company Disclosure Letter sets forth a true Schedule contains an accurate and complete list, as list of the date of this Agreement, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result each Contract in the receipt of or making of future payments categories described below in excess of $100,000; (ii) this Section 4.21(a), in each contract that grants any right of first refusal or right of first offer or that limits the ability of the Companycase, any Subsidiary of to which the Company or any of their respective Affiliates to ownits Subsidiaries is a party, operateor by which the assets or properties of such Persons are bound, selland under which the Company or any of its Subsidiaries has any current or future rights, transferresponsibilities, pledge obligations or otherwise dispose liabilities (in each case, whether contingent or otherwise), in each case as of any businessesthe date hereof (each, securities whether or assets (other than provisions requiring notice not set forth on Section 4.21(a) of or consent to assignment by any counterparty thereto);the Company Disclosure Schedule, a “Material Contract”): (iiii) each contract relating to outstanding Indebtedness Contract that (or commitments or guarantees in respect thereofA) materially limits the freedom of the Company or any of its Subsidiaries to compete in any line of business or geographic region, or with any Person, (whether incurredB) contains any material “most favored nation” provision, assumedexclusive dealing arrangement or arrangement that grants any call or put option, guaranteed or secured by any asset) in excess tag-along right, drag-along right, right of $50,000; (iv) each employment contract to which the Company or a Subsidiary first refusal, right of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any first offer, right of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity first negotiation or similar type of provision that preferential right to any other Person, (C) prohibits or materially restricts limits the ability rights of the Company or any of its Subsidiaries to make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets, (including Parent upon consummation D) purports to limit in any material respect the ability of the TransactionsCompany or its Subsidiaries (or, at and after the Effective Time, Parent or its Subsidiaries) to compete hire, employ or otherwise engage in any line of business or enter into a similar arrangement with any Person (other than ordinary course employee non-solicit or geographic areanon-compete restrictions), (E) provides for the Company or any Subsidiary to be the exclusive or preferred provider of any product or service to any Person, or (F) provides for any Person to be the exclusive or preferred provider of any product or service to the Company or any Subsidiary or that otherwise involves the granting by the Company or any Subsidiary to any Person of exclusive or preferred rights of any kind; (viii) other than with respect to a partnership or entity that is wholly owned by the Company or any of its Subsidiaries, any partnership or joint venture Contracts, or any material strategic alliance, or joint development Contract; (iii) each contract Contract evidencing outstanding Indebtedness of the Company (solely under clauses (a) and (b) of the definition of “Indebtedness”) or any of its Subsidiaries or any financial guaranty thereof in an amount, together with any undrawn commitments to fund Indebtedness under such Contract, in excess of $10,000,000, other than (A) Contracts among the Company and its wholly owned Subsidiaries and (B) financial guarantees entered into in the ordinary course of business with a value less than $10,000,000; (iv) any Contract (excluding licenses for commercial off-the-shelf computer software or non-exclusive licenses granted in the ordinary course of business) to which the Company or any of its Subsidiaries is a party pursuant to which the Company or any Subsidiary of its Subsidiaries (A) is granted any license or right to use, or covenant not sue with respect to, any Intellectual Property of a Third Party or (B) has granted to a Third Party any license or right to use, or covenant not to sue with respect to, any Intellectual Property, and, in the case of both (A) and (B), which Contract is material to the Company may be obligated to issue and its Subsidiaries, taken as a whole; (v) any collective bargaining agreement, works council agreement, labor or repurchase trade union contracts or other similar agreement with any union or other bargaining representative of any Company Capital Stock Employee (collectively, “Collective Bargaining Agreements”); (vi) each Contract with any Company Service Provider that provides for any severance, retention, change in control, stay, transaction-based or any capital stock similar bonuses or other equity interests in any Subsidiary of the termination payments or benefits to such Company (including the Company Warrants and the Company Convertible Notes)Service Provider with an aggregate value exceeding $1,000,000; (vii) any Contract involving (A) a pending acquisition or sale of (or option to purchase or sell) any vessel or any other material asset, including any Company Vessel (other than acquisitions or dispositions of inventory in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets), in each partnershipcase, joint ventureother than with respect to the acquisition or sale of a vessel, limited liability companyinvolving assets with an aggregate fair market value not exceeding $10,000,000, grantor trust, strategic alliance agreement (B) any acquisition or divestiture Contract that contains unpaid “earn out” or other similar agreement contingent payment obligations that are reasonably expected to which exceed $10,000,000 in the Company aggregate, or a Subsidiary of the Company is a party (other than C) any such agreement solely between acquisition or among the Company and its wholly-owned Subsidiaries)divestiture Contract that contains material outstanding indemnity obligations; (viii) each contract between any Contract that relates to the time or among the bareboat chartering (including time charters, bareboat charters or similar agreements with Governmental Authorities), management (technical and/or commercial), crewing, operation, stacking, finance leasing (including sale/leaseback or similar arrangements) or pooling of any Company Vessel that has resulted in payments to or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of by the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined more than $10,000,000 in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on aggregate for the other handprior fiscal year; (ix) any ship-sales, memorandum of agreement or other vessel acquisition Contract entered into since January 1, 2021 other than with respect to the Company Vessels and any Contract entered into since January 1, 2021 with respect to Newbuildings and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements; (x) any Contract providing for an advance or capital contribution to, or investment in, any Person that is not the Company or its Subsidiaries, in each contract case, in amounts exceeding $10,000,000 over any 12-month period; (xi) any Contract relating to financial (including interest rate and exchange rate) or commodities hedging, swaps, options, futures, forward contracts or similar arrangements, in each case, having an outstanding principal or notional amount in excess of $10,000,000; (xii) any Contract involving the settlement, conciliation or similar resolution of any Legal Action that (A) obligates the Company or its Subsidiaries (or, at and after the Effective Time, Parent and its Subsidiaries) to make payments after the date hereof in excess of $10,000,000, (B) imposes any continuing material non-monetary obligations (other than customary confidentiality obligations) on the Company or its Subsidiaries (or, at and after the Effective Time, Parent and its Subsidiaries), (C) involves the admission of criminal wrongdoing by the Company or its Subsidiaries (or, at and after the Effective Time, Parent and its Subsidiaries) or (D) is with any Governmental Authority; (xiii) any Contract with any Governmental Authority involving payments to or by the Company or its Subsidiaries in an amount exceeding $1,000,000 in any calendar year during the term thereof; (xiv) any Real Property Lease; (xv) any Company Affiliate Contract; (xvi) any Contract pursuant to which the Company or any of its Subsidiaries spent or received, in the aggregate, more than $10,000,000 during the twelve (12) months prior to indemnify the date hereof or could reasonably be expected to spend or receive, in the aggregate, more than $10,000,000 during the twelve (12) months immediately after the date hereof (including any past or present directors, officers, or employees of Contract relating to any future capital expenditures by the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time); and (xixvii) each “material contract” Contract (as such term is defined in Item 601(b)(10including any side letters) governing or otherwise materially amending, modifying, supplementing any of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company Exchangeable Notes Indenture or any Subsidiary of the CompanyExchangeable Notes Hedge Obligations. (b) CollectivelyExcept for breaches, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as violations or defaults which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company (or any breaches under any such Material Contract has that arise by virtue of such Contracts having been duly authorized and is enforceable shared with any Member), or as set forth on each party thereto (excluding Section 4.21(b) of the Company and Disclosure Schedule, as of the date hereof (i) each of its Subsidiaries), each Company Material Contract is legal, valid, binding valid and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effecteffect and (ii) neither the Company nor any of its Subsidiaries, subjectnor to the Company’s Knowledge any other party to any such Contract, is in violation of any provision thereof and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries, or, to the Knowledge of the Company, any other party thereto. To the Knowledge of the Company, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in of the aggregate, a Company Material Adverse Effectdate hereof, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract norhas received, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished of this Agreement, any notice in writing to terminate or otherwise made available not renew any Material Contract that would be material to Parent. Neither the Company nor any of and its Subsidiaries has received written notice of any material violation of or material default under any Company ContractSubsidiaries, taken as a whole.

Material Contracts. (a) Section 4.16(a) of Except for this Agreement, the Company Disclosure Letter sets forth a true Benefit Plans, the Collective Bargaining Agreements and complete list, agreements filed as exhibits to the Company SEC Documents as of the date of this Agreement, ofAgreement and neither the Company nor any of its Subsidiaries is a party to or bound by: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (ii) any Contract that (A) imposes any material restriction on the right or ability of the Company or any of its Subsidiaries to compete with any other person or acquire or dispose of the securities of another person or (B) contains an exclusivity or “most favored nation” clause that restricts the business of the Company or any of its Subsidiaries in a material manner; (iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of the Company or any of its Subsidiaries in an amount in excess of $5,000,000; (iv) any Contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties with a value, or requiring the payment of an annual amount by the Company and its Subsidiaries, in excess of $35,000,000; (v) any material joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its Subsidiaries or among the Company’s Subsidiaries; (vi) any Contract expressly limiting or restricting the ability of the Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be; (vii) any Contract that obligates the Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person, other than (A) advances for expenses required under customary joint operating agreements and customary advances to operators of Oil and Gas Interests not covered by a joint operating agreement less than $25,000,000 or (B) any loan or capital contribution to, or investment in, (1) the Exchange ActCompany or one of its wholly owned Subsidiaries, (2) any person (other than an officer, director or employee of the Company or any of its Subsidiaries) that is less than $500,000 to such person or (3) any officer, director or employee of the Company or any of its Subsidiaries that is less than $500,000 to such person; (viii) any Contract providing for the sale by the Company or any of its Subsidiaries of Hydrocarbons that (A) excluding Contracts with market-based pricing mechanisms, has a remaining term of greater than 60 days and does not otherwise described allow the Company or such Subsidiary to terminate it without penalty on 60 days’ notice or less or (B) contains a “take or pay” clause or any similar material prepayment or forward sale arrangement or obligation (excluding “gas balancing” arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor; (ix) any Contract relating to a currently producing property that provides for a call or option on production, or acreage dedication to a gathering, transportation or other arrangement downstream of the wellhead, covering in this Section 4.16(aexcess of 50 MMcf (or, in the case of liquids, in excess of 750 barrels) with respect of Hydrocarbons per day (calculated on a yearly average basis); (x) any Oil and Gas Lease that contains express provisions (A) obligating the Company or any of its Subsidiaries to drill Xxxxx, pursuant to which the Company or any Subsidiary would reasonably be expected to be required to expend $1,000,000 on any individual Oil and Gas Lease or $5,000,000 in the aggregate on all obligations under Oil and Gas Leases, (B) establishing bonus obligations in excess of $1,500,000 that were not satisfied at the time of leasing or signing and that remain payable, (C) requiring payments or providing for a change in terms upon a change in control of the Companylessee or (D) providing for a fixed term, even if there is still production in paying quantities; (xi) any agreement other than Oil and Gas Leases pursuant to which the Company or any of its Subsidiaries has paid amounts associated with any Production Burden in excess of $10,000,000 during the immediately preceding fiscal year or with respect to which the Company reasonably expects that it will make payments associated with any Production Burden in any of the next three succeeding fiscal years that could, based on current projections, exceed $10,000,000 per year; (xii) any agreement which is a joint development agreement, exploration agreement or acreage dedication agreement (excluding, in respect of each of the foregoing, customary joint operating agreements) that either (A) is material to the operation of the Company and its Subsidiaries, taken as a whole, or (B) would reasonably be expected to require the Company and its Subsidiaries to make expenditures in excess of $100,000,000 in the aggregate during the 12-month period following the date hereof; (xiii) any acquisition Contract that contains “earn out” or other contingent payment obligations, or remaining indemnity or similar obligations, that could reasonably be expected to result in payments after the date hereof by the Company or any of its Subsidiaries in excess of $10,000,000; and (xiv) any material lease or sublease with respect to a Company Leased Real Property. (xv) All contracts of the types referred to in clauses (i) through (xv) above are referred to herein as “Company Material Contracts.” (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any Subsidiary of its Subsidiaries the Company is in breach of or default under the terms of any Company Material Contract norand, to the knowledge of the Company, is any no other party to any such Company Material Contract is in material breach of or default thereunderunder the terms of any Company Material Contract. Complete Each Company Material Contract is a valid and accurate copies binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the knowledge of the Company, of each Company Contract other party thereto, and is in effect as of full force and effect, subject to the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company ContractRemedies Exceptions.

Material Contracts. (a) Section 4.16(a) of Except for this Agreement, the Benefit Plans and agreements filed as exhibits to the Company Disclosure Letter sets forth a true and complete listSEC Documents, as of the date of this Agreement, ofneither Company nor any of its Subsidiaries is a party to or bound by: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “"material contract” " (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (ii) any Contract that (A) expressly imposes any restriction on the right or ability of Company or any of its Subsidiaries to compete with any other person or acquire or dispose of the securities of another person or (B) contains an exclusivity or "most favored nation" clause that restricts the business of Company or any of its Subsidiaries in a material manner, other than those contained in customary oil and gas leases or customary confidentiality agreements; (iii) any mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument evidencing indebtedness for borrowed money or any guarantee of such indebtedness of Company or any of its Subsidiaries in an amount in excess of $100,000, except any transactions among Company and its wholly owned subsidiaries or among Company’s wholly owned Subsidiaries; (iv) any Contract that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties with a value, or requiring the payment of an annual amount by Company and its Subsidiaries, in excess of $100,000; (v) any joint venture, partnership or limited liability company agreement or other similar Contract relating to the formation, creation, operation, management or control of any joint venture, partnership or limited liability company, other than any such Contract solely between Company and its Subsidiaries or among Company’s Subsidiaries and other than any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Interests of Company; (vi) any Contract expressly limiting or restricting the ability of Company or any of its Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be; (vii) any Contract that obligates Company or any of its Subsidiaries to make any loans, advances or capital contributions to, or investments in, any person other than (A) advances for expenses required under customary joint operating agreements and customary advances to operators of Oil and Gas Interests of Company not covered by a joint operating agreement or participation agreement or (B) any loan or capital contribution to, or investment in Company or one of its wholly owned Subsidiaries; (viii) any Contract providing for the Exchange Actsale by Company or any of its Subsidiaries of Hydrocarbons that (A) has a remaining term of greater than 60 days and does not otherwise described allow Company or such Subsidiary to terminate it without penalty on 60 days’ notice or less or (B) contains a "take-or-pay" clause or any similar material prepayment or forward sale arrangement or obligation (excluding "gas balancing" arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor; (ix) any Contract that provides for a call or option on production, or acreage dedication to a gathering, transportation or other arrangement downstream of the wellhead, covering in this Section 4.16(aexcess of 100 Mcf per day (or, in the case of liquids, in excess of 25 barrels of oil equivalent) of Hydrocarbons per day over a period of one month (calculated on a yearly average basis); (x) any Oil and Gas Lease that contains express provisions (A) establishing bonus obligations in excess of $5,000 that were not satisfied at the time of leasing or signing or (B) providing for a fixed term, even if there is still production in paying quantities; (xi) any agreement pursuant to which Company or any of its Subsidiaries has paid amounts associated with any Production Burden in excess of $25,000 during the immediately preceding fiscal year or with respect to which Company reasonably expects that it will make payments associated with any Production Burden in any of the next three succeeding fiscal years that could, based on current projections, exceed $25,000 per year; (xii) any agreement which is a joint development agreement, exploration agreement or acreage dedication agreement (excluding, in respect of each of the foregoing, customary joint operating agreements) that either (A) is material to the operation of Company and its Subsidiaries, taken as a whole, or (B) would reasonably be expected to require Company and its Subsidiaries to make expenditures in excess of $25,000 in the aggregate during the 12-month period following the date hereof; (xiii) any acquisition Contract that contains "earn out" or other contingent payment obligations, or remaining indemnity or similar obligations (other than asset retirement obligations, plugging and abandonment obligations and other reserves of Company set forth in the Company Reserve Reports that have been provided to Parent prior to the date of this Agreement), that would reasonably be expected to result in payments after the date hereof by Company or any Subsidiary of its Subsidiaries in excess of $50,000; or (xiv) any material lease or sublease with respect to a Company Leased Real Property. All contracts of the Companytypes referred to in clauses (i) through (xiv) above are referred to herein as "Company Material Contracts." (b) Collectively, Neither Company nor any Subsidiary of Company is in breach of or default under the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a terms of any Company Material Adverse Effect Contract. To the knowledge of Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract. Each Company Material Contract is a valid and assuming each binding obligation of Company Contract has been duly authorized and or the Subsidiary of Company that is enforceable on each party thereto (excluding and, to the Company and knowledge of Company, of each of its Subsidiaries)other party thereto, each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.

Material Contracts. Except for the contracts listed in Section 3.13 of the Seller Disclosure Schedules (the “Material Contracts”), the Real Property Leases, Plans and any contracts entered into following the Execution Date in accordance with Section 5.2, none of the Partnership or any Partnership Subsidiary is a party to or bound by any of the following: (a) Section 4.16(aany contract for the storage of fuel or refined products that will not be terminated prior to the Closing, or that cannot be terminated on ninety (90) or fewer days notice, and that provides for the future payment by or to the Partnership or a Partnership Subsidiary of more than $250,000 per annum; (b) any contract for the supply of goods or services to the Partnership or a Partnership Subsidiary that will not be terminated prior to the Closing, or that cannot be terminated on ninety (90) or fewer days notice, and that provides for future payments by or to the Partnership or a Partnership Subsidiary of more than $250,000 per annum; (c) any contract for the sale or purchase of any material asset that cannot be terminated on ninety (90) or fewer days notice, and that provides for the future payment by the Partnership or a Partnership Subsidiary of more than $250,000 per annum; (d) any contract that grants to any Person a right to purchase any material assets of the Company Disclosure Letter sets forth a true and complete list, as of Partnership or the date of this Agreement, of:Partnership Subsidiaries; (ie) Each merger, business combination, acquisition, purchase, sale or divestiture any contract that contains representations, covenants, indemnities covenants of any of the Partnership or other obligations (including “earnout” the Partnership Subsidiaries that materially limits or other contingent payment obligations) that would reasonably be expected purports to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits limit the ability of the Company, any Subsidiary of the Company Partnership or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Partnership Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or in any geographic area; (vif) each contract pursuant any commitment to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or make any capital stock expenditure or other equity interests to purchase a capital asset in any Subsidiary excess of the Company (including the Company Warrants and the Company Convertible Notes)$250,000 per annum; (viig) each partnership, joint venture, limited liability company, grantor trust, strategic alliance any agreement with Seller or other similar agreement to which the Company or a Subsidiary Affiliates of the Company is a party Seller (other than any such agreement solely between the Partnership or among the Company and its wholly-owned Partnership Subsidiaries); (viiih) each any contract between entered into or among assumed by the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company Partnership or any of its the Partnership Subsidiaries providing for indemnification of any Person, other than entered into or assumed in the ordinary course of business consistent with past practice; (i) any contract which relates to Indebtedness under which the Partnership or any Partnership Subsidiaries has outstanding obligations in excess of $250,000; (j) any contract under which the Partnership or any of their respective “associates” the Partnership Subsidiaries has directly or “immediate family” members (as such terms are defined indirectly guaranteed any liabilities or obligations of a third party in Rule 12b-2 and Rule 16a-1 excess of the Exchange Act), on the other hand;$250,000; or (ixk) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar other contract not otherwise described in this Section 4.16(aclauses (a) that through (Aj) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under above which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company. (b) CollectivelyPartnership, the contracts set forth in Section 4.16(a) are herein referred to as Partnership Subsidiaries or the “Company Contracts.” Business. Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries)Effect, each Company Contract Material Contract, as of the Execution Date, is in full force and effect and constitutes a legal, validvalid and binding agreement of the Partnership or the applicable Partnership Subsidiary, binding and enforceable in accordance with its terms on (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws affecting the Company and each enforcement of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditorscreditors’ Rightsrights generally or by general equitable principles). Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither none of the Company nor Partnership or any of Partnership Subsidiary has received written notification that any Material Contract is not in full force and effect, or that the Partnership or the Partnership Subsidiary or any other party thereto has breached its Subsidiaries is in breach or default under any Company Contract norobligations thereunder, and, to the knowledge Knowledge of the CompanySeller, is any other party no event has occurred that (with or without notice or lapse of time) would reasonably be expected to any such Company Contract result in a breach or violation of, or a default thereunder. Complete and accurate copies of each Company Contract in effect as of under, the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice terms of any material violation of Material Contract by the Partnership or material default under any Company ContractPartnership Subsidiary.

Material Contracts. (a) Except for the contracts described in or filed as an exhibit to the Company SEC Documents or set forth in Section 4.16(a) 3.13 or Section 3.18 of the Company Disclosure Letter sets forth Schedule (collectively, the “Material Contracts”), neither Company nor any of its Subsidiaries is a true and complete list, as party to or is bound by any of the date of this Agreement, offollowing: (i) Each merger, business combination, acquisition, purchase, sale any contract or divestiture contract that contains representations, covenants, indemnities or agreement entered into other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result than in the receipt ordinary course of business consistent with past practice for the acquisition of the securities of or making any material portion of future payments in excess the assets of $100,000any other Person or entity; (ii) each any contract that grants any right or agreement for the purchase of first refusal or right services in excess of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment $100,000 which cannot be cancelled by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries without penalty or further payment or without more than 45 days’ notice; (whether incurrediii) any contract, assumed, guaranteed agreement or secured by any asset) instrument in excess of $50,000; (iv) each employment contract to which 100,000 that expires or may be renewed at the Company or a Subsidiary option of the Company is a party any Person other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries so as to expire more than one year after the date of this Agreement; (including Parent upon consummation iv) any material contract with any independent contractor or consultant (or similar arrangement) which is not cancelable without penalty and without more than thirty (30) days’ notice; (v) any trust indenture, mortgage, promissory note, loan agreement or other contract, agreement or instrument for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the Transactions) type required to compete be capitalized in accordance with GAAP, in each case, where Company or otherwise engage in any line of business its Subsidiaries is a lender, borrower or with any Person or geographic areaguarantor; (vi) each any contract pursuant to which or agreement limiting the Company or any Subsidiary freedom of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” employees to engage in any line of business or “immediate family” members to compete with any other Person; (as such terms are defined vii) any contract or agreement with any Affiliate of Company; (viii) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person other than those entered into in Rule 12b-2 and Rule 16a-1 the ordinary course of the Exchange Act), on the other handbusiness; (ix) any material agreement which would be terminable other than by Company or its Subsidiaries or under which a payment obligation would arise or be accelerated, in each contract that obligates case as a result of the consummation of the transactions contemplated by this Agreement; (x) any material alliance, cooperation, joint venture, stockholders’ partnership or similar agreement; (xi) any broker, distributor, dealer, agency, sales promotion, market research, market consulting or advertising agreement involving in excess of $100,000 (other than software licenses entered into in the ordinary course of business); (xii) any material research, development, sales representative, marketing or reseller agreement, or any service, support or maintenance agreement related to the business or technology of Company or any of its respective Subsidiaries; (xiii) any material agreement, option or commitment or right with, or held by, any Third Party to acquire, use or have access to any assets or properties, or any interest therein, of Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees (other than software licenses entered into in the ordinary course of the Company or any of its Subsidiariesbusiness); (xxiv) each any material vendoragreement that affects or relates to Company IP, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated including, without limitation, any material agreement pursuant to its terms within 60 days after which any person or entity is authorized to use or has an ownership or security interest in any Company IP; (xv) any material contract or agreement which would require any consent or approval of a counterparty as a result of the Effective Time and (B) under which it is reasonably expected consummation of the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Timetransactions contemplated by this Agreement; and (xixvi) each “material contract” (as such term is defined in Item 601(b)(10) any other contract the loss of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the which would have a Company or any Subsidiary of the CompanyMaterial Adverse Effect. (b) CollectivelyCompany and each of its Subsidiaries have performed all of the obligations required to be performed by them and are entitled to all accrued benefits under, the contracts set forth and are not alleged to be in Section 4.16(a) are herein referred default in respect of, each Material Contract to as the “which Company Contracts.” Except or any Subsidiary is a party or by which Company or any Subsidiary is bound, except as would not reasonably be expected to havenot, individually or in the aggregate, have a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding Effect. Each of the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and Material Contracts is in full force and effect, subjectwithout amendment (other than as disclosed in Section 3.13 of the Company Disclosure Schedule), and there exists no default or event of default or event, occurrence, condition or act, with respect to Company or any of its Subsidiaries or, to the knowledge of Company, with respect to any other contracting party, which, with the giving of notice, the lapse of the time or the happening of any other event or condition, would become a default or event of default under any Material Contract, except, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effectbe material to Company. True, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete correct and accurate complete copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) Material Contracts have been furnished to or otherwise made available to Parent. Neither Parent or filed as exhibits to the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company ContractSEC Documents.

Material Contracts. (a) Section 4.16(a) 2.21 of the Company Disclosure Letter sets forth a true and complete list, as lists each of the date of this Agreement, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected following Contracts to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of which the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is currently a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of by which the Company or any of its Subsidiaries is currently bound (each, a “Material Contract”): (a) each advertising, agency, manufacturer’s representative, joint marketing, joint development and joint venture Contract involving annual consideration of more than $100,000 (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notesroyalty payments); (viib) the top eight supply Contracts, excluding purchase orders; (c) each partnershipvalue added reseller, joint venturereseller or third-party sales affiliate Contract that cannot be terminated upon 30 days’ notice without penalty or payment; (d) the top 15 customer Contracts based on revenues to the Company involving photovoltaic projects not completed prior to the date hereof; (e) each trust indenture, limited liability companymortgage, grantor trustpromissory note, strategic alliance loan agreement or other similar agreement to which Contract for the Company borrowing of money, any currency exchange, commodities or a Subsidiary other hedging arrangement or any leasing transaction requiring lease payments in excess of $25,000 annually of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries)type required to be capitalized in accordance with GAAP; (viiif) each contract between Contract for capital expenditure in excess of $50,000 individually or among $500,000 in the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate aggregate; (other than a wholly-owned Subsidiary of the Companyg) of each Contract in accordance with which the Company or any of its Subsidiaries is a lessor or lessee of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property requiring rental payments in excess of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand$50,000 annually; (ixh) each contract that obligates license or other Contract providing rights to, or based upon, any Company IP, other than non-exclusive licenses in connection with the sale of inventory or provision of services in the ordinary course of business; (i) each Contract with any Person with whom the Company or any of its Subsidiaries to indemnify any past or present directorsdoes not deal at arm’s length, officers, or employees other than those Contracts listed in Section 2.10(a) of the Company or any of its SubsidiariesDisclosure Letter; (xj) each material vendoragreement of guarantee, supplier support, indemnification, assumption or third party consulting endorsement of, or any similar contract not otherwise described in this Section 4.16(acommitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) that or indebtedness of any other Person (Aother than a Subsidiary of the Company); (k) cannot be voluntarily terminated pursuant to its terms within 60 days after each government grants Contract for which the Effective Time research and (B) development work undertaken thereunder is still continuing or under which it is reasonably expected the Company or any of its Subsidiaries will be required continue to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; andhave obligations; (xil) each Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company’s business; or (m) each Contract requiring payment of royalties, payment as a result of and upon consummation of the transactions contemplated hereby, or payment of an “material contractearn-out.” (as such term is defined All Material Contracts are in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to executed written form, and the Company or any the applicable Subsidiary has performed all of the Company. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred obligations required to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized performed by it and is enforceable on each party thereto (excluding entitled to all benefits under, and, to the Company and each Company’s knowledge, is not alleged to be in default in respect of, any Material Contract. Each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and Material Contracts is in full force and effect, subjectand the Company, as to enforceabilityor the applicable Subsidiary, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, and to the knowledge of the Company, is any other party to each Material Contract, are not in default of any such Company Material Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including here. Following the Effective Time, the Surviving Company and each of its Subsidiaries will be permitted to exercise all amendments and modifications) have been furnished to of their rights under the Material Contracts without the payment of any additional amounts of consideration other than ongoing fees, royalties or otherwise made available to Parent. Neither payments that the Company nor and any of its Subsidiaries has received written notice would otherwise be required to pay in accordance with the terms of any material violation of or material default under any Company Contractsuch Contracts had the transactions contemplated by this Agreement not occurred.

Material Contracts. (a) Except for this Agreement and except for Contracts filed as exhibits to the Company SEC Reports or as set forth in Section 4.16(a) 3.15 of the Company Disclosure Letter sets forth a true and complete listSchedule, as of the date hereof, none of this Agreement, ofthe Company or its Subsidiaries is a party to nor are any of the Company’s or its Subsidiaries’ properties or assets bound by: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) any Contract that would reasonably be expected required to result in be filed by the receipt Company pursuant to Item 19 and paragraph 4 of or making the Instructions to Exhibits of future payments in excess of $100,000Form 20-F under the Exchange Act; (ii) each contract that grants any right Contract relating to the formation, creation, operation, management or control of first refusal a partnership, joint venture, limited liability company or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)similar arrangement; (iii) each contract any Contract involving the payment or receipt of amounts by the Company or its Subsidiaries, or relating to outstanding Indebtedness indebtedness for borrowed money or any financial guaranty, of more than US$10,000,000; (iv) any non-competition Contract or commitments other Contract that purports to limit, curtail or guarantees restrict in any material respect thereof) the ability of the Company or any of its Subsidiaries (whether incurredto compete in any geographic area, assumed, guaranteed industry or secured by any asset) in excess line of $50,000business; (ivv) each employment contract any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a Subsidiary fair market value or purchase price of more than US$10,000,000; (vi) any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company is a party other than employment contracts that can be terminated at or any time with less than two days’ notice and without financial liability to of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guaranty by the Company or any of its Subsidiaries; (vvii) each contract containing any nonCompany IP Agreements other than agreements for Off-compete, nonthe-solicit, exclusivity or similar type of provision that materially restricts the ability of Shelf Software; and (viii) any Contract between the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) executive officer of the Company or any of its Subsidiaries Person beneficially owning five percent or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 more of the Exchange Act), on the other hand; (ix) each contract that obligates the outstanding Company or any of its Subsidiaries Shares required to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated disclosed pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company Item 7B or any Item 19 of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation SForm 20-K F under the Exchange Act) not otherwise Act (all such Contracts described in this Section 4.16(aclauses (i) with respect to through (viii) collectively, the Company or any Subsidiary of the Company“Material Contracts”). (b) Collectively, Each of the contracts set forth in Section 4.16(a) are herein referred to as Material Contracts constitutes the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect valid and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding legally binding obligation of the Company and each of or its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability. There is no default under any Material Contract so listed either by the Company or, to Creditors’ Rights. Except the Company’s knowledge, by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or, to the Company’s knowledge, any other party, in each case except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge of the Company, is any other . (c) No party to any such Material Contract has given notice to the Company Contract in of or made a claim against the Company with respect to any material breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.

Material Contracts. (a) Section 4.16(aThe Company has delivered or otherwise made available to Newco true, correct and complete copies of all contracts and agreements in effect on the date hereof (and all amendments, modifications and supplements thereto and all related letter agreements to which the Company is a party affecting the obligations of any party thereunder) to which the Company or any Company Subsidiaries is a party or by which any of its properties or assets are bound that are material to the financial condition, results of operations, business, properties, prospects or assets of the Company Disclosure Letter sets forth a true and complete listthe Company Subsidiaries taken as whole (collectively, as of the date of this Agreement, of: "Company Material Contracts"). The Company Material Contracts shall be deemed to include all: (i) Each mergeremployment, business combinationconsulting, acquisitionnon-competition, purchaseseverance, sale golden parachute or divestiture indemnification contracts (including, without limitation, any contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in which the receipt Company is a party involving employees of or making of future payments in excess of $100,000; the Company); (ii) each contract that grants any licensing, merchandising or distribution agreements; (iii) contracts granting a right of first refusal or right first negotiation; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease of first offer material properties or that limits the ability assets of the Company (by merger, purchase or sale of assets or stock or otherwise) entered into since May 26, 1993 (other than the acquisition of the Brentwood, Tennessee property, which has been disposed of by the Company, ); (vi) contracts or agreements with any Subsidiary Governmental Entity; (vii) all material agreements relating to indebtedness of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments Company Subsidiary or guarantees in respect thereof) of indebtedness by the Company or any of its Subsidiaries Company Subsidiary; (whether incurred, assumed, guaranteed or secured by any assetviii) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicitall noncompetition, exclusivity or similar type of provision that materially restricts other agreements restricting the ability of the Company or any of Company Subsidiary to operate its Subsidiaries business as now, or contemplated to be, conducted; (including Parent upon consummation of the Transactionsix) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely agreements between or among the Company and any of its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary officers, its directors, holders of 5% of the Company, on the one hand, and any officer, director outstanding Shares or Affiliate (other than a wholly-owned Subsidiary of the Company) affiliates of the Company or any Company Subsidiary (all of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms which agreements are defined also listed in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ixSection 3.15(a)(ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; Disclosure Schedule); and (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant all commitments and agreements to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or enter into any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Companyforegoing. (b) Collectively, the contracts Except as set forth in Section 4.16(a3.15(b) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding of the Company and each of its Subsidiaries), each Company Contract Disclosure Schedule: (i) There is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or no default under any Company Material Contract noreither by the Company or, to the knowledge of the Company, is by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or, to the knowledge of the Company, any other party, in any such case in which such default or event could reasonably be expected to have a Company Material Adverse Effect. (ii) No party to any such Company Material Contract in has given notice to the Company of or made a claim against the Company with respect to any breach or default thereunder. Complete and accurate copies of each , in any such case in which such breach or default could reasonably be expected to have a Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company ContractMaterial Adverse Effect.

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as of On the date of this Agreementhereof, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract except for Contracts relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurredentities, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and including without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each limitation partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement invested by but not Controlled by the Group Companies or other similar agreement to which the Company or a Subsidiary as set forth in Section 4.12(a) of the Disclosure Schedule, none of the Group Company is a party to or bound by: (i) any Contract relating to the formation, creation, operation, management or Control of a partnership, joint venture, limited liability company or similar arrangement; (ii) any Contract involving a loan (other than accounts receivable from trade debtors in the ordinary course of business) or advance to (other than travel and entertainment allowances to the employees of any such agreement solely between Group Company extended in the ordinary course of business), or among investment in, any Person, of more than RMB15,000,000 in any calendar year on its face; (iii) any Contract involving indebtedness or obligation (contingent or otherwise) of any Group Company of more than RMB15,000,000; (iv) any Contract that involves, or contains restrictions with respect to, (A) payment of dividends or other distributions with respect to equity interests of any Group Company, (B) pledging of share capital of any Group Company, or (C) the issuance of a guaranty by any Group Company; (v) any Contract that contains a put, call or similar right pursuant to which any Group Company and its whollycould be required to purchase or sell, as applicable, any equity interests of any Person or material assets; (vi) any non-owned Subsidiaries)competition Contract or other Contract that purports to limit, curtail or restrict the ability of any Group Company to compete in any geographic area, industry or line of business or grants exclusive rights to the counterparty thereto; (vii) any Contract involving copyright, or any other Intellectual Property that is material to any Group Company other than those in the ordinary course of business; (viii) each contract between any Contract that contains provisions on “most favored nations”, or among the Company rights of first refusal or similar rights over any Subsidiary of the CompanyOrdinary Shares, on the one hand, Series A Preferred Shares and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other handSeries B Preferred Shares; (ix) each contract any Contract that obligates involves the Company sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any Equity Securities of its Subsidiaries to indemnify any past or present directors, officersGroup Company, or employees the acquisition or disposition of the any assets or business by any Group Company or any involving an amount of its Subsidiariesnot less than RMB15,000,000; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated any Contract pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any Person obtains Control of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; andany Group Company; (xi) each any Contract involving the waiver, compromise, or settlement of any Action over RMB15,000,000; or (xii) any Contract that is otherwise material to a Group Company. Each such Contract described above is referred to herein as a “material contract” (as such term is defined in Item 601(b)(10Material Contract”, which shall include, inter alia, all of the Control Documents. Section 4.12(a) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect Disclosure Schedule contains a true, correct and complete list of all Material Contracts, and a copy of each Material Contract has been provided by the Company to the Company or any Subsidiary of the CompanyPurchaser. (bi) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Each Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is a legal, valid, valid and binding and enforceable in accordance with its terms on the obligation of each Group Company and each of its Subsidiaries that is a party thereto and is and, to the best knowledge of any Group Company, the other parties thereto, enforceable against them in full force and effectaccordance with its terms, in each case subject, as to enforceabilityenforcement of remedies, to Creditors’ Rights. Except as would not reasonably be expected to havethe Bankruptcy and Equity Exception, individually or in (ii) none of the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract Group Companies nor, to the best knowledge of the any Group Company, is any other party thereto is in material breach or violation of, or default under, any Material Contract and no event has occurred or not occurred through any Group Company’s action or inaction or, to the best knowledge of any Group Company, the action or inaction of any third party, that, with or without due notice or lapse of time or both, would constitute a material breach or violation of, or default under, any Material Contract, and (iii) the Group Companies have not received any written claim or notice of default, termination or cancellation under any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Material Contract.

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets forth a true and complete listExcept for this Agreement, as of the date of this Agreement, ofneither the Company nor any of its Subsidiaries is a party to or bound by, in each case other than any Company Benefit Plan, any Contract, obligation, judgment, injunction, order or decree: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected required to result in be filed by the receipt Company as a “material contract” under Section 12.2 of or making of future payments in excess of $100,000National Instrument 51-102 – Continuous Disclosure Obligations; (ii) each contract that grants contains any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially limits or restricts (or purports to materially limit or restrict) the ability of the Company or any of its Subsidiaries (including Parent upon consummation to make distributions or declare or pay dividends in respect of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any their capital stock stock, partnership interests, membership interests or other equity interests interests, as the case may be, in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnershipcase, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Organizational Documents of the Company and its Subsidiaries; (iii) other than solely among direct or indirect wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary Subsidiaries of the Company, on relating to the one handcreation, and any officerincurrence, director assumption or Affiliate (other than a wholly-owned Subsidiary guarantee of Indebtedness of the CompanyCompany and its Subsidiaries in a principal amount that exceeds $2,500,000; (iv) that is a settlement or similar agreement with any Governmental Authority or order or consent of a Governmental Authority to which the Company or any of its Subsidiaries is subject involving future performance by the Company, its Subsidiaries or any of their respective “associates” or “immediate family” members (Affiliates, in each case that is material to the Company and its Subsidiaries, taken as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other handa whole; (ixv) that (A) limits in any material respect either the type of business in which the Company, its Subsidiaries and their respective Affiliates may engage or the manner or locations in which any of them may so engage in any business, or (B) grants “most favoured nation” status in a manner that would materially restrict or affect the future business activity of the Company and its Subsidiaries and their respective Affiliates, in each contract case that is material to the Company and its Subsidiaries, taken as a whole; (vi) that grants any rights of first refusal, rights of first negotiation or other similar rights to any person with respect to the sale of any ownership interest of the Company or its Subsidiaries or any business or assets of the Company and its Subsidiaries, taken as a whole, in each case that is material to the Company and its Subsidiaries, taken as a whole; (vii) that obligates the Company or any of its Subsidiaries to indemnify make any past (or present directorsany series of related) capital commitment or capital expenditure (excluding capitalized salaries) in excess of $2,500,000 individually after the date hereof through September 1, officers2022 or $2,500,000 individually thereafter; (viii) that requires by its terms or is reasonably likely to require the payment or delivery of cash or other consideration by or to the Company and/or its Subsidiaries in an amount having an expected value in excess of $2,500,000 in the fiscal year ending August 31, 2021 or in any fiscal year thereafter and cannot be cancelled by the Company and/or its Subsidiaries without penalty or further payment without more than 180 days’ notice; (ix) that relates to the formation, creation, governance or control of, or employees the economic rights or obligations of the Company or any of its SubsidiariesSubsidiaries in, any material joint venture, limited liability company, partnership or other similar arrangement; (x) each material vendorthat is a “market access”, supplier or third party consulting “skin” or similar contract not otherwise described in this Section 4.16(aContract relating to the operation or allocation of revenue with respect to online sports betting or other gaming; and (xi) that (A) cannot be voluntarily terminated relates to the acquisition, disposition or similar business combination transaction of any business, assets or properties (whether by merger, sale of stock, sale of assets or otherwise) pursuant to its terms within 60 days after the Effective Time and which (Bx) under which it is reasonably expected any material earn-out or deferred or contingent payment obligations remain outstanding or (y) a material claim for indemnification may still be made against the Company or any of its Subsidiaries will be required (excluding for breaches of representations and warranties), or (B) relates to pay feesany pending acquisition, expenses disposition or other costs similar business combination transaction (whether by merger, sale of stock, sale of assets or otherwise), in each case where the consideration is in excess of $50,000 following 2,500,000. Each Contract constituting any of the Effective Time; and foregoing types of Contract (xi) each “material contract” (as such term is defined in Item 601(b)(10) whether or not listed on Section 3.26 of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the CompanyDisclosure Letter) is referred to as a “Material Contract”. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company A true and complete copy of each Material Adverse Effect and assuming each Company Contract has been duly authorized made available to Purchaser. Except for expirations in the ordinary course and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its the terms of such Material Contract, each Material Contract is valid and binding on the Company and or its Subsidiaries, as applicable, and, to the Knowledge of the Company, each of its Subsidiaries that is a other party thereto thereto, and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except except as would not have, or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither . To the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge Knowledge of the Company, each Material Contract is enforceable by the Company or its Subsidiaries, as applicable, in accordance with its terms, except as may be limited by the Enforceability Exceptions and except where the failure of such Material Contract to be enforceable would not have, or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. There is no default under any such Material Contracts by the Company or its Subsidiaries, or, to the Knowledge of the Company, any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or its Subsidiaries, or, to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect as the Knowledge of the date hereof (including all amendments and modifications) have been furnished Company, any other party thereto, in each case, except as would not have, or reasonably be expected to have, individually or otherwise made available to Parentin the aggregate, a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any written notice challenging the validity or enforceability of any material violation Material Contract except where the failure of such Material Contract to be valid or material default under any enforceable would not have, or reasonably be expected to have, individually or in the aggregate, a Company ContractMaterial Adverse Effect.

Material Contracts. (a) Except for the Original Merger Agreement, the Contracts filed as exhibits to the Company SEC Reports, and the Contracts listed in Subsections (i) through (xxi) of Section 4.16(a3.16(a) of the Company Disclosure Letter sets forth a true and complete listSchedule, as of the date of this AgreementOriginal Execution Date, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) none of the Company or any of its Subsidiaries is a party to or bound by the following Contracts: (whether incurredi) any Contract that would be required to be filed by the Company pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act; (ii) any Contract relating to the formation, assumedcreation, guaranteed operation, management or secured by control of any assetSubsidiary of the Company or any other partnership, joint venture, strategic collaboration, global affiliation or business cooperation, limited liability company or similar arrangement; (iii) any Contract involving a loan (other than accounts receivable from trade debtors in excess the ordinary course of $50,000business) or advance to (other than travel and entertainment allowances to the employees of the Company and any of its Subsidiaries extended in the ordinary course of business), or investment in, any person or any Contract relating to the making of any such loan, advance or investment for more than US$5,000,000; (iv) each any Contract involving Indebtedness of the Company or any of its Subsidiaries of more than US$5,000,000; (v) any Contract (including so called take-or-pay or keep-well agreements) under which any person (other than the Company or any of its Subsidiaries) has directly or indirectly guaranteed Indebtedness of the Company or any of its Subsidiaries of more than US$5,000,000; (vi) any Contract granting or evidencing a Lien on any properties or assets of the Company or any of its Subsidiaries with value of more than US$5,000,000, other than a Permitted Encumbrances; (vii) any management service, consulting, financial advisory or any other similar type Contract and all Contracts with investment or commercial banks; (viii) any Contract for the acquisition, disposition, sale, transfer or lease (including leases in connection with financing transactions) of properties or assets of the Company or any of its Subsidiaries that have a fair market value or purchase price of more than US$5,000,000 (by merger, purchase or sale of assets or stock or otherwise) entered into since December 31, 2014 or, if prior to that date, have representations, warranties or indemnities that remain in effect or as to which claims are pending; (ix) any Contracts involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute with amount in controversy greater than US$5,000,000; (x) any Contract involving a standstill or similar arrangement; (xi) any non-competition Contract or other Contract that purports to limit, curtail or restrict in any material respect the ability of the Company or any of its Subsidiaries to compete in any geographic area, industry or line of business; (xii) any Contract for the employment contract of any senior executive officer; (xiii) any Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any person or assets that have a Subsidiary fair market value or purchase price of more than US$5,000,000; (xiv) any Contract (other than Contracts granting Company Options, or Company RSs) giving the other party the right to terminate such Contract as a result of the Original Merger Agreement, this Agreement or the consummation of the Transactions, including the Merger, where (A) such Contract requires any payment in excess of US$5,000,000 to be made by the Company or any of its Subsidiaries in any calendar year or (B) the value of the outstanding receivables due to the Company and its Subsidiaries under such Contract is in excess of US$5,000,000 in any calendar year; (xv) any Contract that contains restrictions with respect to (A) payment of dividends or any distribution with respect to equity interests of the Company is a party other than employment contracts that can be terminated at or any time with less than two days’ notice and without financial liability to of its Subsidiaries, (B) pledging of share capital of the Company or any of its Subsidiaries or (C) issuance of guarantee by the Company or any of its Subsidiaries; (vxvi) each contract containing any non-competeContract providing for (A) a license, non-solicitcovenant not to xxx or other right granted by any Third Party under any Intellectual Property to the Company or any of its Subsidiaries, exclusivity (B) a license, covenant not to xxx or similar type of provision that materially restricts the ability of other right granted by the Company or any of its Subsidiaries to any Third Party under any Intellectual Property, (including Parent upon consummation C) an indemnity of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which person by the Company or any Subsidiary of the Company may be obligated to issue its Subsidiaries against any charge of infringement, misappropriation, unauthorized use or repurchase violation of any Company Capital Stock Intellectual Property right, or (D) any capital stock royalty, fee or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which amount payable by the Company or a Subsidiary any of its Subsidiaries to any person by reason of the Company is a party ownership, use, sale or disposition of Intellectual Property, in each case of clauses (A) through (D), other than any agreements for off-the-shelf Software and such agreement solely between or among Contracts that are not material to business of the Group Companies, taken as a whole, and in each case of clauses (C) and (D), other than Contracts entered into by the Company and its wholly-owned Subsidiaries)Subsidiaries in the ordinary course of business; (viiixvii) each contract any Contract granting rights in respect of exclusivity, “most favored nation” or similar rights; (xviii) any Contract between or among the Company or any Subsidiary of the Companyits Subsidiaries, on the one hand, and any officer, director or Affiliate of their respective Affiliates (other than the Company or any of its Subsidiaries), on the other hand, that involves payments of more than US$5,000,000 in any one year; (xix) each Control Agreement and any other any Contract which (A) provides the Company with effective control over any of its Subsidiaries in respect of which it does not, directly or indirectly, own a wholly-owned Subsidiary majority of the Companyequity interests (each, an “Operating Subsidiary”), (B) of provides the Company or any of its Subsidiaries the right or option to purchase the equity interests in any of their respective “associates” Operating Subsidiary, or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 C) transfers economic benefits from any Operating Subsidiary to any other Subsidiary of the Exchange Act), on the other handCompany; (ixxx) each contract that obligates any Contract between the Company or any of its Subsidiaries to indemnify and any past director or present directors, officers, or employees executive officer of the Company or any person beneficially owning five percent or more of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot the outstanding Shares required to be voluntarily terminated disclosed pursuant to its terms within 60 days after Item 7B or Item 19 of Form 20-F under the Effective Time and Exchange Act (B) under which it is reasonably expected the Company or any of its Subsidiaries will including those that would be required to pay fees, expenses or other costs in excess be disclosed if the Form 20-F were filed as of $50,000 following the Effective TimeOriginal Execution Date); andor (xixxi) each “material contract” (as any other Contract which, if terminated, could reasonably be expected to result in a Company Material Adverse Effect. Each such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise Contract described in this Section 4.16(aclauses (i) with respect to (xxi) and each such Contract that would be a Material Contract if it had not been filed as an exhibit to the Company or any Subsidiary of the CompanySEC Reports is referred to herein as a “Material Contract.” (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Material Contract is a legal, neither valid and binding obligation of a Group Company, as applicable, in full force and effect and enforceable against such Group Company in accordance with its terms, subject to the Bankruptcy and Equity Exception; (ii) to the knowledge of the Company, each Material Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the Bankruptcy and Equity Exception; (iii) no Group Company nor any of its Subsidiaries is in breach or default under any Company Contract norand, to the knowledge of the Company, no counterparty, is any other party or is alleged to any such Company Contract be in breach or violation of, or default thereunder. Complete and accurate copies of each Company Contract in effect as under, any Material Contract; (iv) to the knowledge of the date hereof Company, no person intends to terminate any Material Contract; and (including all amendments and modificationsv) have been furnished none of the execution of the Original Merger Agreement, the execution of this Agreement or the consummation of any Transaction shall constitute a default under, give rise to cancellation rights under, or otherwise adversely affect any of the rights of any Group Company under any Material Contract. The Company has furnished or made available to Parent. Neither the Company nor Parent true and complete copies of all Material Contracts, including any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contractamendments thereto.

Material Contracts. (a) Except as set forth on Section 4.16(a3.14(a) of the Company Disclosure Letter sets forth Schedules, neither the Company nor any of its Subsidiaries is a true and complete listparty to or bound by, as of the date hereof, any of the following (each Contract of the type described in this AgreementSection 3.14(a), of:whether written or oral and whether or not set forth in the Company Disclosure Schedules, is referred to as a “Material Contract”): (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract any Contract that contains representations, covenants, indemnities or other obligations constitutes a “material contract” (including “earnout” or other contingent payment obligationsas such term is defined in item 601(b)(10) that would reasonably be expected to result in of Regulation S-K of the receipt of or making of future payments in excess of $100,000SEC); (ii) any Contract entered into since January 1, 2016 (and any Contract entered into at any time to the extent that material obligations remain as of the date hereof), other than in the ordinary course of business consistent with past practice, for the acquisition of the securities of or any material portion of the assets of any other Person or entity; (iii) any trust indenture, mortgage, promissory note, loan agreement or other Contract or instrument for the borrowing of money, any currency exchange, commodities or other hedging Contracts or any leasing transaction of the type required to be capitalized in accordance with GAAP, in each contract case, where the Company or any of its Subsidiaries is a lender, borrower or guarantor, other than Contracts evidencing deposit liabilities, endorsements and guarantees in connection with the presentation of items for collection (e.g., personal or business checks) in the ordinary course of business consistent with past practice, trade payables and Contracts relating to borrowings entered into in the ordinary course of business; (iv) any Contract limiting (or purporting to limit) the freedom of the Company or any of its Subsidiaries or other Affiliates to engage in any line of business or to compete with any other Person or prohibiting the Company or any of its Subsidiaries or other Affiliates from soliciting customers, clients or employees, in each case, whether in any specified geographic region or business or generally (in each case, other than to a de minimis extent); (v) any Contract with any Affiliate of the Company or any of its Subsidiaries; (vi) any agreement of guarantee, support or indemnification by the Company or any of its Subsidiaries, assumption or endorsement by the Company or any of its Subsidiaries of or any similar commitment by the Company or any of its Subsidiaries with respect to the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person other than those entered into in the ordinary course of business; (vii) any Contract that would be terminable other than by the Company or any of its Subsidiaries or any Contract under which a material payment obligation would arise or be accelerated, in each case, as a result of the announcement or consummation of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events); (viii) any alliance, cooperation, joint venture, shareholders’ partnership or similar Contract involving a sharing of profits or losses relating to the Company or any of its Subsidiaries; (ix) any employment Contract with any employee or officer of the Company or any of its Subsidiaries; (x) any Contract, option or commitment or right with, or held by, any third party to acquire, use or have access to any assets or properties, or any interest therein, of the Company or any of its Subsidiaries, other than in connection with the sale of Loans, Loan participations or investment securities in the ordinary course of business consistent with past practice to third parties who are not Affiliates of the Company; (xi) any Contract that contains any (A) exclusive dealing obligation, (B) “clawback” or similar undertaking requiring the reimbursement or refund of any fees, (C) “most favored nation” or similar provision granted by the Company or any of its Subsidiaries or (D) provision that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates its Subsidiaries to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities assets or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto)business; (iiixii) each contract relating to outstanding Indebtedness (any lease or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries other Contract (whether incurredreal, assumedpersonal or mixed, guaranteed tangible or secured by any assetintangible) pursuant to which the annualized rent or lease payments are, or are reasonably expected to be, in excess of $50,000100,000; (ivxiii) each employment contract to which any Contract for the Company use or a Subsidiary purchase of the Company materials, supplies, goods, services, equipment or other assets that involves payments in excess of $100,000 per year; and (xiv) any Contract not listed above that is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability material to the Company financial condition, results of operations or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries;. (xb) The Company and each of its Subsidiaries have performed in all material vendorrespects all of the obligations required to be performed by them and are entitled to all accrued benefits under each, supplier or third party consulting or similar contract and are not otherwise described alleged to be and are not, in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant default in respect of, any Material Contract to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses is a party or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to by which the Company or any Subsidiary of the Company. (b) Collectivelyits Subsidiaries is bound, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except except as would not reasonably be expected likely to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each its Subsidiaries. Each of the Material Contracts is valid and binding on the Company or its Subsidiaries that is a party thereto applicable Subsidiary and is in full force and effect, subjectwithout amendment, and there exists no default or event of default or event, occurrence, condition or act, with respect to the Company or any of its Subsidiaries or, to the Knowledge of the Company, with respect to any other contracting party, which, with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of default under any Material Contract, except, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to havenot, individually or in the aggregate, a Company Material Adverse Effect, neither be material to the Company nor any of and its Subsidiaries is in breach or default under any Company Contract norSubsidiaries. True, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete correct and accurate complete copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) Material Contracts have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.

Material Contracts. (ai) Section 4.16(aAs of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any of the following Contracts: (i) any Contract with respect to indebtedness for borrowed money or any financial guaranty thereof in excess of $1,000,000, other than (A) indebtedness between and among the Company and its Subsidiaries and (B) financial guaranties by the Company of indebtedness owed by its Subsidiaries to third parties; (ii) any Contract that is not terminable at will by the Company without penalty that purports to prohibit the Company or any of its Subsidiaries from competing in any material respect in any business line, with any Person or in any geographic area (provided that in the case of Contracts that did not involve the receipt by the Company of at least $1,000,000 in payments in 2014 and are not expected to involve the receipt of payments by the Company in 2015 of at least $1,000,000, this list is to the Knowledge of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement); (iii) any Contract that involves any exchange-traded, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities over-the-counter or other obligations (including “earnout” swap, cap, floor, collar, futures contract, forward contract, option or any other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments derivative financial instrument with a fair market value in excess of $100,000; 1,000,000; (iiiv) each contract any Contract that grants involved expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $10,000,000 in 2014 or by its terms requires expenditures or guaranteed receipts by the Company or any of its Subsidiaries of more than $10,000,000 in 2015; (v) any Contract that involved, since January 1, 2013, the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets composing a business or capital stock or other equity interests of another Person (other than acquisitions or dispositions of assets, capital stock and other equity interests by and among the Company and its Subsidiaries); (vi) any Contract (other than this Agreement) that is not terminable on 90 days or less notice and by its terms limits the payment of dividends or other distributions by the Company or any of its Subsidiaries; (vii) any joint venture or partnership Contract material to the Company and its Subsidiaries, taken as a whole; (viii) any Contract for the lease of real property material to the operation of the Company’s and its Subsidiaries’ business, taken as a whole; (ix) any Contract that contains a put, call, right of first refusal or right of first offer negotiation, right of first offer, redemption, repurchase or similar right that limits the ability of the Company, any Subsidiary of is material to the Company or any of their respective Affiliates and its Subsidiaries, taken as a whole, pursuant to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of which the Company or any of its Subsidiaries would be required to, or have the option or right to, purchase or sell, as applicable, any equity interests, businesses, lines of business, divisions, joint ventures, partnerships or other assets of any Person; (whether incurred, assumed, guaranteed x) any settlement agreement or secured by any asset) in excess of $50,000; (iv) each employment contract similar Contract with a Governmental Entity or order to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of involving future performance by the Company or any of its Subsidiaries in any such case that is material to the Company and its Subsidiaries, taken as a whole; (xi) any Contract for capital expenditures or the acquisition or construction of fixed assets which requires aggregate future payments in excess of $3,000,000; (xii) any Contract containing covenants of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify or hold harmless another Person or make any past “earn-out” or present directorsother contingent payment to another Person, officers, or employees unless such obligation to such Person contained in such Contract would not reasonably be expected to exceed a maximum of the Company or $1,000,000; (xiii) any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) Contract that (A) cannot be voluntarily terminated pursuant grants to its terms within 60 days after the Effective Time and any third Person any material exclusive license or supply or distribution agreement or other similar material exclusive rights or (B) under which it grants to any third Person any “most favored nation” rights and is reasonably expected to result in aggregate future payments to the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following 5,000,000 per annum or, to the Effective TimeKnowledge of the Company as of the date hereof, in excess of $2,000,000 per annum; and and (xixiv) each any Contract deemed to be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under of the Exchange ActSEC) not otherwise (all contracts of the type described in this Section 4.16(a3.1(p)(i) with respect being referred to the in this Agreement as “Company or any Subsidiary of the CompanyMaterial Contracts”). (bii) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not be reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected likely to have, individually or in the aggregate, a Company Material Adverse Effect, (A) neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract nor, to the knowledge Knowledge of the Company, is any other party, is in material breach of or material default under the terms of any Company Material Contract; (B) each Company Material Contract is a valid and binding obligation of the Company or its Subsidiaries which is party thereto and, to any such Company Contract in breach or default thereunder. Complete and accurate copies the Knowledge of the Company, of each Company Contract other party thereto, and is in effect as of full force and effect, except that such enforcement may be subject to the date hereof Bankruptcy and Equity Exception; and (including all amendments and modificationsC) have been furnished to or otherwise made available to Parent. Neither neither the Company nor any of its Subsidiaries has received written any written, or, to the Knowledge of the Company, oral, notice of termination or breach with respect to, and, to the Knowledge of the Company, no party has threatened to terminate, any material violation of or material default under any Company Material Contract.

Material Contracts. (a) Except for Company Material Contracts filed as exhibits to the Company Reports prior to the date of this Agreement or, as listed in Section 4.16(a3.14(a) of the Company Disclosure Letter sets forth a true and complete listLetter, as of the date of this Agreement, of: neither the Company nor any of the Company Subsidiaries is a party to or bound by (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the Company or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in excess of $50,000; (iv) each employment contract to which the Company or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item item 601(b)(10) of Regulation S-K under of the Exchange ActSEC) not otherwise or (ii) any Contract that: (A) is a “non-compete,” or similar agreement that restricts or purports to restrict the geographic area in which the Company or any of the Company Subsidiaries may conduct any line of business, or that requires the referral of business opportunities by the Company or any of the Company Subsidiaries that could reasonably be expected to be material to the Company and the Company Subsidiaries taken as a whole; (B) relates to partnerships, joint ventures or similar arrangements pursuant to which the Company or any of the Company Subsidiaries invests in any other Person that could reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole; (C) relates to indebtedness of the Company or any of the Company Subsidiaries in excess of $1,000,000; (D) provides for the acquisition or disposition of any assets by the Company or any of the Company Subsidiaries with a purchase price therefor in excess of $500,000; (E) except for as required pursuant to the terms of any Company Benefit Plan, provides for transactions or arrangements between the Company or any of the Company Subsidiaries, on the one hand, and (I) any director or officer of the Company or any of the Company Subsidiaries, (II) any record or beneficial owner of 5% or more of the voting securities of the Company or (III) any Affiliate of any such director, officer or record or beneficial owner, on the other hand; (F) is with on-air talent or employees providing services to the Company or Company Subsidiaries and involves a commitment for annual consideration in excess of $300,000; (G) except for as required pursuant to the terms of any Company Benefit Plan, provides for annual payments in excess of $300,000 by, or $500,000 to, the Company or Company Subsidiaries; or (H) is a local marketing agreement, joint sales agreement or similar agreement; (all contracts of the type described in this Section 4.16(a) with respect 3.14(a), being referred to the herein as a “Company or any Subsidiary of the CompanyMaterial Contract”). (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither Neither the Company nor any of its the Company Subsidiaries is in breach of or default under the terms of any Company Material Contract norin any material respect. To the knowledge of the Company, no other party to any Company Material Contract is in any material respect in breach of or default under the terms of any Company Material Contract. Each Company Material Contract is a valid and binding obligation of the Company or any Company Subsidiary which is a party thereto and, to the knowledge of the Company, is in full force and effect; provided, however, that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any other party to any such Company Contract proceeding therefor may be brought. True, correct and complete copies, in breach or default thereunder. Complete and accurate copies all material respects, of each Company Material Contract in effect as of the date hereof (including all modifications and amendments thereto and modificationswaivers thereunder) have been furnished to or otherwise made available to Parent. Neither the Company nor any of its Subsidiaries has received written notice of any material violation of or material default under any Company Contract.

Material Contracts. (a) Section 4.16(a) of the Company Disclosure Letter sets forth a true and complete list, as As of the date of this Agreement, of:neither the Company nor any of its Subsidiaries is a party to or bound by any Contract (each Contract of the type described in this Section 4.11(a) to which the Company or any of its Subsidiaries is a party to or bound by as of the date of this Agreement or to which the Company or any of its Subsidiaries is a party to or bound by and that has been filed with the SEC prior to the date hereof being referred to herein as a “Material Contract”): (i) Each merger, business combination, acquisition, purchase, sale that is or divestiture will be required to be filed by the Company as a material contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligationspursuant to Item 601(b)(10) that would reasonably be expected to result in of Regulation S-K under the receipt of or making of future payments in excess of $100,000Securities Act and is not already so filed; (ii) each contract that limits or purports to limit in any material respect either the type of business in which the Company or any of its Affiliates may engage or the manner or locations in which any of them may so engage in any business; (iii) that includes any “most favored nations” terms and conditions (including with respect to pricing), any exclusive dealing arrangement, any arrangement that grants any right of first refusal or refusal, right of first offer or that similar right, any area of mutual interest clause or similar clause or any other term, condition or clause that, in the case of each of the foregoing, individually or in the aggregate, limits or purports to limit in any material respect the ability of the Company, any Subsidiary of the Company or any of their respective its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businessesmaterial assets or business (excluding, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of each of the Company or any of its Subsidiaries (whether incurredforegoing, assumed, guaranteed or secured by any asset) in excess of $50,000customary joint operating agreements); (iv) each employment contract that creates a partnership (other than a Tax partnership), joint venture, strategic alliance or similar arrangement with respect to which the Company any material business or a Subsidiary assets of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiaries, taken as a whole; (v) each contract containing any non-compete, non-solicit, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify make any past loans, advances or present directors, officerscapital contributions to, or employees investments in, any person other than (A) advances for expenses required under customary joint operating agreements and customary advances to operators of Oil and Gas Interests not covered by a joint operating agreement or (B) any loan or capital contribution to, or investment in, (1) the Company or one of its wholly owned Subsidiaries, (2) any person (other than any officer, director or employee of the Company or any of its Subsidiaries; (x) each material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that is less than $25 million to such person or (A3) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected any officer, director or employee of the Company or any of its Subsidiaries will be required that is less than $1 million to pay feessuch officer, expenses director or employee; (vi) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other costs agreement (other than those solely between the Company and its Subsidiaries) providing for or guaranteeing indebtedness in excess of $50,000 following 50 million individually; (vii) that is an acquisition agreement, asset purchase, stock purchase or other similar agreement pursuant to which (A) the Effective Time; andCompany reasonably expects that it or any of its Subsidiaries is required to pay total consideration (including assumption of debt) after the date of this Agreement in excess of $50 million or (B) any other person has the right to acquire any assets of the Company or any of its Subsidiaries (or, after giving effect to the consummation of the Offer or the Merger, Parent or any of its Subsidiaries) or any interests therein after the date of this Agreement with a purchase price of more than $50 million; (viii) that is an agreement providing for the sale by the Company or any of its Subsidiaries of Hydrocarbons that (A) has a remaining term of greater than 60 days and does not allow the Company or such Subsidiary to terminate it without penalty on 60 days’ notice or less or (B) contains a “take-or-pay” clause or any similar material prepayment or forward sale arrangement or obligation (excluding “gas balancing” arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor; (ix) that provides for a call or option on production, or acreage dedication to a gathering, transportation or other arrangement downstream of the wellhead, covering in excess of 20 MMcf (or, in the case of liquids, in excess of 750 barrels) of the Company’s and its Subsidiaries’ Hydrocarbons per day (calculated on a yearly average basis); (x) that is a treatment, gathering, processing or transportation agreement to which the Company or any of its Subsidiaries is a party involving the treatment, gathering, processing or transportation of more than 50 MMcf (or, in the case of liquids, in excess of 500 barrels) of Hydrocarbons per day (calculated on a yearly average basis); (xi) that is a joint development agreement, exploration agreement, participation or program agreement or similar agreement (excluding, in respect of each “material contract” of the foregoing, customary joint operating agreements) that contractually requires the Company and its Subsidiaries to make expenditures that would reasonably be expected to be in excess of $100 million in the aggregate during the 12-month period following the date of this Agreement; (as such term xii) that is defined a collective bargaining agreement; (xiii) that involves or could reasonably be expected to involve aggregate payments by or to the Company and/or its Subsidiaries in Item 601(b)(10excess of $50 million in any 12-month period, except for any Contract that may be cancelled without penalty or termination payments by the Company and/or its Subsidiaries upon notice of 60 days or less, and excluding joint operating agreements and production sales Contracts; (xiv) of Regulation S-K under the Exchange Actthat is an Oil and Gas Lease that contains express provisions (A) not otherwise described in this Section 4.16(a) with respect to obligating the Company or any Subsidiary to drill Xxxxx, pursuant to which the Company or any Subsidiary would reasonably be expected to be required to expend $25 million on any individual Oil and Gas Lease or $200 million in the aggregate on all obligations under Oil and Gas Leases, (B) establishing bonus obligations in excess of $10 million that were not satisfied at the time of leasing or signing, (C) requiring payments or providing for a change in terms upon a change in control of the Companylessee or (D) providing for a fixed term, even if there is still production in paying quantities; and (xv) that is a settlement or similar agreement with any Governmental Entity or Order or consent of a Governmental Entity to which the Company or any of its Subsidiaries is subject involving future performance by the Company or any of its Subsidiaries that is or would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveas, individually or in the aggregate, a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to havebe material to the Company and its Subsidiaries, taken as a whole, each Material Contract is a valid and binding obligation of the Company or its Subsidiaries (to the extent they are parties thereto or bound thereby), is in full force and effect and enforceable against the Company or its Subsidiaries and, to the Knowledge of the Company, each other party thereto, in accordance with its terms (subject to the Bankruptcy and Equity Exception). Except for breaches, violations or defaults that would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole, neither the Company nor any of its Subsidiaries is in breach or default under any Company Contract norSubsidiaries, nor to the knowledge Knowledge of the Company, is Company any other party to a Material Contract, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Company Contract in breach or default thereunder. Complete Material Contract, and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise made available to Parent. Neither neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Material Contract or, as of the date of this Agreement, of an intention by any counterparty (other than the Company or any of its Subsidiaries) to cancel, terminate or amend in any material violation of respect or material default under not renew any Company Material Contract.

Material Contracts. (a) Section 4.16(a) Schedule 3.12 of the Company Seller Disclosure Letter sets forth a true and complete listlist of each of the following Contracts to which, as of the date of this Agreement, of: (i) Each merger, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt of or making of future payments in excess of $100,000; (ii) each contract that grants any right of first refusal or right of first offer or that limits the ability of the Company, any Subsidiary of the Company or any of their respective Affiliates its Subsidiaries, if any, is a party (each, a “Company Material Contract”): (i) each Contract (A) not to own, operate, sell, transfer, pledge (or otherwise dispose of any businesses, securities restricting or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) limiting the ability of the Company or any of its Subsidiaries, if any, to) compete in any line of business or geographic area or (B) to restrict the ability of the Company or any of its Subsidiaries, if any, to conduct business in any geographic area; (ii) each Contract (other than any Company Benefit Plan) that is reasonably likely to require, during the remaining term of such Contract, annual payments by the Company or any of its Subsidiaries that exceed $250,000; (iii) all Contracts granting to any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any material Company Assets; (iv) all material Contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment (other than agreements with employees, non-exclusive licenses granted to the Company’s or its Subsidiaries’ customers, and non-exclusive licenses to commercially available, off-the-shelf Software that have been granted on standardized, generally available terms); (v) all partnership, joint venture or other similar agreements or arrangements; (vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement (or a series of related agreements) in excess of with an aggregate outstanding principal amount not exceeding $50,0001,000,000; (ivvii) each employment contract to which any agreement for the Company disposition or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to acquisition by the Company or any of its Subsidiaries; (v) each contract containing any non-compete, non-solicitif any, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic area; (vi) each contract pursuant to which the Company or any Subsidiary of the Company may be obligated to issue or repurchase any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes); (vii) each partnership, joint venture, limited liability company, grantor trust, strategic alliance agreement or other similar agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries); (viii) each contract between or among the Company or any Subsidiary of the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand; (ix) each contract that obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, or employees material obligations of the Company or any of its Subsidiaries; , if any, (xother than confidentiality obligations) each remaining to be performed or material vendor, supplier or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after the Effective Time and (B) under which it is reasonably expected Liabilities of the Company or any of its Subsidiaries will be required Subsidiaries, if any, continuing after the date of this Agreement, of any material business or any material amount of assets other than in the ordinary course of business; (viii) any agreement with (A) the top 10 customers of the Company and its Subsidiaries, if any, taken as a whole, as applicable, and (B) the top 10 suppliers of the Company and its Subsidiaries, if any, taken as a whole, as applicable, in each case, for the 2022 fiscal year measured by the aggregate obligations paid or agreed to pay feesto or by the Company, expenses as applicable; (ix) any agreement restricting or limiting the payment of dividends or the making of distributions to stockholders, including intercompany dividends or distributions other costs than such restrictions or limitations that are required by applicable Law; (x) any Contract for the development of Intellectual Property, other than those entered into in excess the ordinary course of $50,000 following business with Company employees and contractors on the Effective TimeCompany’s standard form for such Contracts; and (xi) each “material contract” (as such term is defined to the extent not set forth in Item 601(b)(10Schedule 3.12(a) of Regulation S-K under the Exchange Act) not otherwise described in Seller Disclosure Letter pursuant to another subsection of this Section 4.16(a) 3.12(a), all material agreements with respect to the Company or any Subsidiary of the CompanyGovernmental Authority. (b) CollectivelyA true and complete copy of each Company Material Contract (including any amendments thereto) entered into prior to the date of this Agreement has been made available to Buyer prior to the date of this Agreement. Each Company Material Contract is a valid and binding agreement of the Company or its applicable Subsidiary, except where the contracts set forth in Section 4.16(a) are herein referred failure to as the “Company Contracts.” Except as be valid and binding would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each of its Subsidiaries), each Company Contract is legal, valid, binding and enforceable in accordance with its terms on the Company and each of its Subsidiaries that is a party thereto and is in full force and effect, subject, as to enforceability, to Creditors’ RightsEffect. Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor or such Subsidiary nor, to the Knowledge of the Company, any of its Subsidiaries other party thereto, is in breach of or default under any Company Contract nor, to the knowledge of the Company, is any other party to any such Company Contract in breach or default thereunder. Complete and accurate copies of each Company Contract in effect Material Contract, (ii) as of the date hereof of this Agreement, there are no material disputes in connection with any such Company Material Contract and (including all amendments and modificationsiii) have been furnished to or otherwise made available to Parent. Neither as of the date of this Agreement, no party under any Company nor any of its Subsidiaries Material Contract has received given written notice of any its intent to terminate or otherwise seek a material violation of or material default under any amendment to such Company Material Contract.

Material Contracts. (a) Section 4.16(aExcept as set forth in Schedule 3.09(a) of and excluding any Contract that is an Excluded Asset or an Excluded Liability, with respect to the Company Disclosure Letter sets forth a true and complete listBusiness, as of the date of this Agreement, ofAgreement neither Seller nor any of its Subsidiaries (including the Purchased Subsidiary Companies) is a party to or bound by: (i) Each mergerany Contract providing for the performance of services or the delivery of goods or materials by Seller or any of its Subsidiaries that requires annual payments to Seller or any of its Subsidiaries of $1,000,000 or more; (ii) any lease of personal property requiring (A) annual rentals of $1,000,000 or more or (B) aggregate payments by Seller and its Subsidiaries of $2,000,000 or more, business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations in the case of each of clauses (including “earnout” or other contingent payment obligationsA) and (B) that would reasonably cannot be expected to result in the receipt terminated on not more than 120 days’ notice without payment by Seller or and its Subsidiaries of or making of future payments any penalty in excess of $100,000; (iiiii) each contract any agreement for the purchase of materials, supplies, goods, services, equipment or other tangible assets from a third party that grants any right of first refusal or right of first offer or that limits the ability is one of the Company, any Subsidiary ten (10) largest suppliers (by dollar-value of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto); (iii) each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereoftotal purchases) of the Company Business for the twelve (12)-month period ended November 24, 2013, that cannot be terminated on not more than 120 days’ notice without payment by Seller or any of its Subsidiaries (whether incurred, assumed, guaranteed or secured by of any asset) penalty in excess of $50,000300,000; (iv) each employment contract to which the Company any material partnership, joint venture, franchise, development (including any area development), royalty, management or a Subsidiary of the Company is a party other than employment contracts that can be terminated at any time with less than two days’ notice and without financial liability to the Company or any of its Subsidiariessimilar agreement; (v) each contract containing any non-compete, non-solicit, exclusivity Contract that limits the freedom of Seller or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete or otherwise engage in any line of business or with any Person or geographic in any area, in each case which would so limit the freedom of Buyer after the Closing Date; (vi) each contract pursuant any Contract (i) granting to which Seller or one of its Subsidiaries any right to use, exploit or practice any third party Intellectual Property Right necessary for or otherwise material to the Company Business, other than COTS Licenses, or (ii) constituting a grant by Seller or one of its Subsidiaries to any Subsidiary third party of the Company may be obligated any right to issue use, exploit or repurchase practice any Company Capital Stock or any capital stock or other equity interests in any Subsidiary of the Company (including the Company Warrants and the Company Convertible Notes)Business Intellectual Property; (vii) each partnershipany note, joint venturemortgage, limited liability company, grantor trust, strategic alliance indenture or other obligation or agreement or other similar agreement instrument for or relating to which Indebtedness for borrowed money (including capitalized leases), or any guarantee of third party obligations, or any lien securing such Indebtedness or obligations, or any letters of credit, performance bonds or other credit support for the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among the Company and its wholly-owned Subsidiaries)Business; (viii) each contract between any Contract that is a settlement, conciliation or among similar agreement with any Governmental Authority binding upon the Business or any Purchased Company or any Subsidiary of pursuant to which the Company, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Subsidiary of the Company) of the Company Business or any Purchased Company will be required after the date of its Subsidiaries or any this Agreement to pay consideration in excess of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand$250,000; (ix) each contract any Contract that obligates the Company requires any party to provide goods or services (or to act in any of its Subsidiaries to indemnify any past manner) on an exclusive basis or present directors, officers, or employees of the Company or any of its Subsidiaries;containing “most favored nation” provisions; or (x) each material vendor, supplier any Contract or third party consulting or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within 60 days after Lease involving commitments by the Effective Time and (B) under which it is reasonably expected the Company Business or any Purchased Company to make capital expenditures or the acquisition or construction of its Subsidiaries will be required to pay fees, expenses or other costs fixed assets in excess of $50,000 following the Effective Time; and (xi) each “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) not otherwise described in this Section 4.16(a) with respect to the Company or any Subsidiary of the Company250,000. (b) Collectively, the contracts set forth in Section 4.16(a) are herein referred to as the “Company Contracts.” Except as would not reasonably be expected to haveexpected, individually or in the aggregate, to be material to the Business, (i) each Contract and Lease set forth, or required to be set forth, in Schedule 3.09 (each, a Company “Material Adverse Effect Contract”) is a valid and assuming each Company Contract has been duly authorized and is enforceable on each party thereto (excluding the Company and each binding agreement of Seller and/or one of its Subsidiaries)Subsidiaries party thereto, as applicable and, to the knowledge of Seller, each Company Contract is legalother party thereto, valid, binding and enforceable in accordance with its terms on the Company terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and each of its Subsidiaries that is a party thereto similar Laws affecting creditors’ rights generally and is in full force and effect, subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected general principles of equity, (ii) to have, individually or in the aggregate, a Company Material Adverse Effectknowledge of Seller, neither the Company Seller nor any of its Subsidiaries is in material breach or material default, or has received any written notice of any material breach, material default or event that, with or without notice or lapse of time, or both, would constitute a material breach or material default by Seller or any of its Subsidiaries under any Company Material Contract norwhich has not been cured, and (iii) to the knowledge of the CompanySeller, is any no other party to any such Company a Material Contract is in breach of or default thereunderunder such Material Contract. Complete and accurate copies of each Company Contract in effect as of the date hereof (including all amendments and modifications) have been furnished to or otherwise Seller has made available to Parent. Neither Buyer true, correct and complete copies of all Material Contracts (or reasonably detailed summaries of the Company material terms thereof) as in effect on the date of this Agreement. (c) To the knowledge of Seller, neither Seller nor any of its Subsidiaries is in material breach or material default, or has received any written notice of any material violation breach, material default or event that, with or without notice or lapse of time, or both, would constitute a material breach or material default by Seller or any of its Subsidiaries under any Company ContractMaterial Shared Contract which has not been cured.