BETWEEN

COMPUWARE CORPORATION

AND

MEP PX ACQUISITION LLC

---

---

---

---

---

THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is made as of January 7, 2014, by and between Compuware Corporation, a Michigan corporation (“Seller”), and MEP PX Acquisition LLC, a Delaware limited liability company (“Buyer”).  Seller and Buyer are together referred to herein as the “Parties” and individually as a “Party.”  Capitalized terms used in this Agreement without definition shall have the meaning given to such terms in Article I hereof.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.1                Definitions.  For purposes of this Agreement, the following terms shall have the meanings set forth below:

“Acquired Business” means, collectively, the following:

“Acquisition Proposal” means any inquiry, proposal or offer from any Person other than Buyer and its Affiliates relating to, whether in a single transaction or series of related transactions (i) any sale, recapitalization or other disposition of the Acquired Business or a portion of the Purchased Assets, (ii) any purchase, lease or license of a portion of the Purchased Assets or (iii) any other transaction having a similar effect to those described in clauses (i) and (ii).

“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities or otherwise.

“Affiliate Assumed Liabilities” means all of the Assumed Liabilities that are Liabilities of a Selling Affiliate as of the Closing Date.

“Affiliate Purchased Assets” means all of the Purchased Assets that are owned by a Selling Affiliate as of the Closing Date.

---

“Assumed Acquired Business Lease” means the Acquired Business Leases that constitute Purchased Contracts.

“Business Unit” means, individually, any of (i) the Professional Services Business, (ii) Uniface, or (iii) Changepoint.

“Changepoint” means the Changepoint business unit of the Seller and the Selling Affiliates.

“Closing Date Accounts Receivable Amount” means the amount of Closing Date Accounts Receivable, reduced by all sales Tax, goods and services Tax and VAT included therein and directly attributable thereto.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Contract” means any contract, license, sublicense, mortgage, purchase order, indenture, loan agreement, lease, sublease, agreement, instrument, statement of work or arrangements for consulting services or any binding commitment to enter into any of the foregoing (in each case, whether written or oral) to which Seller or a Selling Affiliate is a party or by which they, or any of their assets, are subject or bound (including all covenants not to compete and assignments of inventions).

“Employment Liabilities” means, with respect to any past or present employee or contractor of Seller or any Affiliate of Seller (including the Selling Affiliates), including the Scheduled Employees, and any of their dependents or beneficiaries, any and all Liabilities, whenever or however arising, including all costs and expenses relating thereto arising under any Contract or Employee Benefit Plan, or under any law, regulation, business permit, litigation, claim, assessment, action, suit, proceeding, order, judgment, decree, investigation or arbitrator award of any kind relating to any Contract or Employee Benefit Plan, or otherwise relating to any such employee or contractor and his or her service or employment with Seller or any Affiliate of Seller (including the Selling Affiliates) and the termination thereof, including:

---

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“ERISA Affiliate” means any Person who, together with Seller, is or was, at a relevant time, treated as a single employer under Section 414 of the Code.

“GAAP” means United States generally accepted accounting principles, consistently applied.

“IFRS” means International Financial Reporting Standards, consistently applied.

“Indebtedness” means (i) any indebtedness for borrowed money or issued in substitution for or exchange of indebtedness for borrowed money, (ii) any indebtedness evidenced by any note, bond, debenture or other debt security or similar instrument or upon which interest payments are customarily made, (iii) any indebtedness for the deferred purchase price of property or services with respect to which a Person is liable, contingently or otherwise, as obligor or otherwise (excluding deferred revenue in connection with the sale of Products), (iv) any commitment by which a Person assures a creditor against loss (including any contingent reimbursement Liability with respect to letters of credit), (v) any indebtedness guaranteed in any manner by a Person (including any guarantees in the form of an agreement to repurchase or reimburse), (vi) any Liabilities under capitalized leases with respect to which a Person is liable, contingently or otherwise, as obligor, guarantor or otherwise, (vii) any indebtedness secured by a Lien on a Person’s assets, (viii) any off-balance sheet financing of a Person (but excluding all operating leases), (ix) any accrued and unpaid interest on, and any prepayment premiums, penalties or similar contractual charges in respect of, any of the foregoing obligations computed as though payment is being made in respect thereof on the Closing Date and (x) any Liabilities incurred by such Person (including any fees, costs and expenses incurred on behalf of Seller) in connection with the negotiation of this Agreement, the other Transaction Documents, the performance of such Person’s and its Affiliates’ obligations hereunder and thereunder, and the consummation of the transactions contemplated hereby and thereby.

“Intellectual Property” means Technology and Intellectual Property Rights.

“Intellectual Property Rights” means all registered and unregistered intellectual property rights throughout the world, including all of the following items along with all rights associated with the following:  (i) any rights in or with respect to the protection of any know-how, invention (whether patentable or unpatentable and whether or not reduced to practice), any improvements to any invention, and any patent, utility model, patent application, statutory invention registration or patent disclosure for the foregoing, together with any reissuance, division, continuation, continuation-in-part, revision, extension, or reexamination of any patent; (ii) any trademark, service mark, trade dress, or logo, whether or not registered, together with any translation, adaptation, derivation, or combination and including any associated goodwill, and any application for registration, registration, or renewal of the foregoing; (iii) any copyright for any work (including, but not limited to, advertising and promotional materials, catalogs, logo designs, software, compilations of data, and website content), and any application for registration, registration, or renewal of the copyright; (iv) any trade-secret and other rights in or with respect to the protection of any confidential or proprietary business information (including, but not limited to, any idea, research and development, know-how, formula, composition, manufacturing and production process or technique, technical data, design, drawing, specification, customer or supplier list, pricing and cost information, and business and marketing plan or proposal); (v) any industrial–design rights and any registrations and applications therefor; (vi) database rights, semiconductor topography rights, domain name rights, trade name rights and neighboring rights; (vii) any similar, corresponding or analogous rights to any of the foregoing; and (viii) the right to sue and recover damages, attorneys’ fees and costs for any past, present and future infringement, misappropriation or violation of any of the foregoing.

---

“Knowledge” as used in the phrases “to the Knowledge of Seller”, “to Seller’s Knowledge” or phrases of similar import means the actual knowledge of the individuals set forth on Schedule 1.1(a).

“Liability” means any liability, debt, obligation, deficiency, penalty, assessment, fine, claim, cause of action or other loss, fee, cost or expense of any kind or nature whatsoever, whether asserted or unasserted, absolute or contingent, known or unknown, accrued or unaccrued, liquidated or unliquidated, and whether due or to become due and regardless of when asserted.

“Licenses” means permits, licenses, franchises, certificates, approvals, consents, certificates of authorization, registrations and other authorizations of foreign, federal, state and local governments or regulatory authorities, or other similar rights.

“Lien” means any mortgage, pledge, security interest, encumbrance, claim, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof) or any agreement to file any of the foregoing, any sale of receivables with recourse against Seller or any of its Affiliates (including the Selling Affiliates) and any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar statute, in each case that affects a Purchased Asset.

“Material Adverse Effect” means an event, condition or change which, together with any other events, conditions or changes, has had or would reasonably be expected to have a material adverse effect on the Acquired Business, the Purchased Assets or the Assumed Liabilities, except for any such event, condition or change resulting, directly or indirectly, from (i) the public announcement of this Agreement, (ii) any change in applicable accounting standards, such as GAAP or IFRS, but only to the extent it does not disproportionately affect the Purchased Assets, the Assumed Liabilities or the Acquired Business,  (iii) any change in applicable law, but only to the extent it does not disproportionately affect the Purchased Assets, the Assumed Liabilities or the Acquired Business, (iv) any natural disaster or any acts of terrorism, sabotage, military action or war (whether or not declared) or any escalation or worsening thereof, but only to the extent it does not disproportionately affect the Purchased Assets, the Assumed Liabilities or the Acquired Business, or (v) any change in general economic conditions or the financial or securities markets generally, but only to the extent it does not disproportionately affect the Purchased Assets, the Assumed Liabilities or the Acquired Business.

“Ordinary Course of Business” means ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency).

“Permitted Liens” means (i) Liens for property or ad valorem Taxes which are not due and payable as of the Closing, (ii) Liens constituting contractual license terms under Purchased Contracts, and (iii) materialmen’s, mechanics’, carriers, warehousemen’s, workmen’s and repairmen’s liens occurring in the Ordinary Course of Business for amounts not yet due and payable, in each case, only to the extent that such Liens also constitute Assumed Liabilities.

---

“Person” means an individual, a partnership, a limited liability company, a corporation, a cooperative, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental authority, body or entity or any department, agency or political subdivision thereof.

“Pre-Closing Tax Period” means any Tax period (or portion thereof) ending on or before the Closing Date.

“Prime Purchased Technology” means: (i) the Computer Devices primarily related to, or primarily used or held for use in the operation of, the Acquired Business, including those set forth on Schedule  2.1(a)(ii)(a); (ii) the Product Software; (iii) all Technology that is otherwise listed on any of Schedules 2.1(a)(i) - 2.1(a)(xv); and (iv) all Technology that is otherwise primarily related to, or primarily used or held for use in the operation of, the Acquired Business, including any such Technology primarily related to, or primarily used or held for use in the operation of, the Acquired Business that may currently be loaded or stored on the computers, servers or other equipment that are not Purchased Assets (including, for example, any such Software, data and other Technology loaded or stored on any subdivisions, virtual machines or similar portions of any servers that are primarily used for other businesses of the Seller).

“Products” means any and all products, services and business solutions, in whatever stage of development and in whatever form, that (i) are designed, developed, sold, licensed, provided or delivered by or for each of the Business Units, including software products delivered on a software-as-a-services basis, or (ii) are otherwise listed in Schedule 1.1(b), together with the Product Software for all such products, services and business solutions.

“Product Software” means (i) all Software that constitutes, or is included in or part of, any version of the Products (other than the COS, LM, HCI/UMPIRE, and DLM Software that is defined, and licensed from Sellers to Buyers, pursuant to the Technology Rights and Licensing Agreement Attached as Exhibit E) and (ii) all Software that is used to support the Products (including in the use, operation, programming, verification, testing, support, application provision or delivery of the Products) and that is primarily related to, or primarily used or held for use in the operation of, the Acquired Business, including the Software listed on Schedule 1.1(c), all versions of any of the foregoing, and any Software from which any of the foregoing Software was derived or that was derived from such Software.

“Professional Services Business” means the Professional Services Business business unit of the Seller and the Selling Affiliates.

“Purchased Contract” means each Contract that is primarily related to, or primarily used in connection with, the Acquired Business, except for any such Contract that (a):

“Release” shall have the meaning set forth in CERCLA.

“Scheduled Employees” means each of the employees of Seller or any of its Affiliates (including Selling Affiliates) identified on Schedule 9.9 hereto.

“Selling Affiliates” means each Affiliate of Seller identified in Exhibit A and each other Affiliate of Seller that holds any right, title or interest in or to any of the Purchased Assets.

“Shared Contract” means a Contract that relates to, or is used in, both the Acquired Business and any portion of the business of Seller and its Affiliates that does not constitute the Acquired Business.

“Software” means any and all computer software and code, including assemblers, applets, compilers, source code, object code, data (including speech and sound data), development or control systems, tools and environments, and user interfaces, in any form or format, however fixed.  Software includes source code listings, cell libraries, and related documentation and manuals.

“Straddle Period” means any Tax period commencing on or before the Closing Date and ending after the Closing Date.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability company, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof.  For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a partnership, limited liability company, association or other business entity if such Person or Persons shall be allocated a majority of partnership, limited liability company, association or other business entity gains or losses or shall be or control the managing director, manager, or general partner of such partnership, limited liability company, association or other business entity.

---

“Tax” or “Taxes” means any federal, state, local or foreign income, profits, gross receipts, capital gains, franchise, alternative or add-on minimum, estimated, sales, use, goods and services, transfer, registration, value added, excise, natural resources, severance, stamp, occupation, premium, windfall profit, environmental (including taxes under Code §59A), customs, duties, real property, personal property, capital stock, social security, unemployment, employment, disability, payroll, license, employee or other withholding, contributions or other tax or escheat obligation or other similar charges, of any kind whatsoever, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing, whether disputed or not and including any obligation to indemnify or otherwise assume or succeed to the Tax liability of another Person.

“Tax Returns” means returns, declarations, reports, claims for refund, information returns or other documents (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of Taxes of any party or the administration of any laws, regulations or administrative requirements relating to any Taxes and including any attachments thereto and amendment thereof.

“Technology” means all technology, whether in electronic, written or other media, including all know-how, show-how, techniques, design rules, trade secrets, inventions (whether patentable or unpatentable and whether or not reduced to practice) and invention disclosures, algorithms, routines, Software, files, databases, works of authorship, processes, Computer Devices, prototypes, lab notebooks, development and equipment, schematics, test methodologies and documentation, any media on which any of the foregoing is recorded, and any other tangible embodiments of the foregoing.

“Transaction Documents” means (i) this Agreement, a Bill of Sale and Assignment agreement in customary form to be agreed to by Buyer and Seller prior to Closing (the “Bill of Sale and Assignment Agreement”), a transition services agreement in customary form to be agreed to by Buyer and Seller prior to Closing and consistent with Exhibit D (the “Transition Services Agreement”), the Subleases (if any) and the executed form of each agreement and instrument attached as an Exhibit hereto, and (ii) each Transfer Document. Transaction Documents shall also include, if requested by a lessor or is otherwise reasonably requested by either party, a separate assignment of any Assumed Acquired Business Lease.

“Transfer Taxes” means any transfer, documentary, sales, use, VAT, stamp, registration or other similar fees and Taxes.

“Uniface” means the Uniface business unit of the Sellers and the Selling Affiliates.

“VAT” means value added Taxes, goods and services Taxes, and similar Taxes.

1.2               Other Definitions.  Each of the following defined terms has the meaning given such term in the Section set forth opposite such defined term:

---

 

---

---

---

---

---

For purposes of this Section 2.2, “Seller” shall be deemed to include all of Seller’s Subsidiaries, Affiliates (including the Selling Affiliates), any predecessors to Seller and any person or entity with respect to which Seller is a successor-in-interest (including by operation of law, merger, liquidation, consolidation, assignment, assumption or otherwise). Seller hereby acknowledges that it or a Selling Affiliate is retaining the Excluded Liabilities, and Seller or a Selling Affiliate shall pay, discharge and perform all such Liabilities promptly when due.

---

---

2.5                Allocation of Purchase Price.  The Cash Closing Payment and the Assumed Liabilities shall be allocated among the Purchased Assets in accordance with Code Section 1060 and the Treasury Regulations thereunder.  If Seller and Buyer cannot reach agreement on the allocation within 60 days from the Closing Date, Seller and Buyer shall file, and shall cause their respective Affiliates to file, all Tax Returns in a manner consistent with their own allocations.

---

---

---

2.8            Customer Matters.  Buyer and Seller agree to the procedures and obligations set forth on Schedule 2.8 with respect to certain customers set forth therein.

2.9                Risk of Loss.  Until the Closing, any loss of or damage to the Purchased Assets from fire, casualty or any other occurrence shall be the sole responsibility of Seller or the Selling Affiliates, as applicable. At the Closing, title to the Purchased Assets shall be transferred to Buyer (or a Buying Affiliate), and Buyer (or a Buying Affiliate) shall thereafter bear all risk of loss (subject to Article VIII) associated with the Purchased Assets.

ARTICLE III

3.1                Conditions to Buyer’s Obligation.  The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the fulfillment of the following conditions as of the Closing Date:

---

---

Any condition specified in this Section 3.1 may be waived by Buyer; provided that no such waiver shall be effective unless it is set forth in a writing executed by Buyer or unless Buyer agrees in writing to consummate the transactions contemplated by this Agreement without fulfillment of such condition.

3.2                Conditions to Seller’s Obligations.  The obligation of Seller to consummate the transactions contemplated by this Agreement is subject to the fulfillment of the following conditions as of the Closing Date:

---

Any condition specified in this Section 3.2 may be waived by Seller; provided that no such waiver shall be effective against Seller unless it is set forth in a writing executed by Seller or unless Seller agree in writing to consummate the transactions contemplated by this Agreement without the fulfillment of such condition.

ARTICLE IV

4.1                Covenants of Seller.  Prior to the Closing, unless expressly required of Seller by other provisions of this Agreement or unless Buyer otherwise agrees in writing, Seller shall, and shall cause the Selling Affiliates to:

---

---

4.2                Covenants of Buyer.  Prior to the Closing, Buyer shall:

Except as set forth in the disclosure schedules dated as of the date hereof and delivered herewith to Buyer (the “Disclosure Schedules”), which Disclosure Schedules are subject to Section 10.15 hereof, and as a material inducement to Buyer to enter into this Agreement, Seller (it being agreed that, except for Sections 5.1 and 5.2, unless otherwise specified, all references in this Article V to “Seller” shall be deemed to be references to Seller and Selling Affiliates to the extent the applicable)  hereby represents and warrants as of the date of this Agreement and as of the Closing Date (provided that the representations and warranties expressly made as of a specified date will be true and correct as of such date) to Buyer that:

---

5.1                Organization and Corporate Power.  Seller is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation.  Seller has full corporate power and authority and all licenses, permits and authorizations necessary to own and operate its business relating to the Acquired Business and the Purchased Assets as presently conducted, except where the failure to have such license, permit or authorization would not have a Material Adverse Effect. Seller is not in default under or in violation of any provision of its articles of incorporation or bylaws or its equivalent governing documents.

5.2                Authorization of Transactions.  Seller has full corporate power and authority to execute and deliver this Agreement and each of the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby.  Seller’s board of directors has duly approved this Agreement and all other Transaction Documents to which it is a party and has duly authorized the execution and delivery of this Agreement and all other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby.  No vote of the shareholders of Seller or any other corporate proceedings on the part of Seller (or any of its Affiliates) is necessary to approve and authorize the execution and delivery of this Agreement or the other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby.  This Agreement and all other Transaction Documents to which Seller is a party have been duly executed and delivered by Seller and constitute the valid and binding agreements of Seller, enforceable against Seller in accordance with their terms, except as such enforceability may be limited by principles of laws of general application relating to bankruptcy, insolvency and the relief of debtors.

5.3                Absence of Conflicts.  Except as set forth on Section  5.3 of the Disclosure Schedules attached hereto, the execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby by Seller do not and shall not (a) conflict with or result in any breach of any of the terms, conditions or provisions of, (b) constitute a default under, (c) result in a violation of, (d) give any third party the right to modify, terminate or accelerate or cause the modification, termination or acceleration of, any obligation under, (e) result in the creation of any Lien upon any of the Purchased Assets or (f) require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any court or administrative or other governmental body or agency, under (i) the provisions of the articles of incorporation or by-laws of Seller, (ii) any Material Contract, (iii) any one or more Purchased Contracts, other than Material Contracts, considered individually or in the aggregate, where the occurrence of any one or more event described in (a)-(f) above would, or would reasonably be expected to, result in a Material Adverse Effect, any law, statute, rule or regulation to which Seller, the Acquired Business or any of the Purchased Assets is subject or (iv) any judgment, order or decree to which Seller, the Acquired Business or any of the Purchased Assets is subject, except such filings and notices as may be required under the HSR Act.

5.4                Statements.

---

5.5                Absence of Undisclosed Liabilities.  Except as set forth on Section 5.5 of the Disclosure Schedules, there are no Liabilities with respect to the Acquired Business other than such Liabilities (a) under Purchased Contracts (but not Liabilities for material breaches thereof or material defaults thereunder or for tort, infringement or violation of law), (b)  of the type included in the calculations of accounts payable and accrued expenses, respectively, on the Current Balance Sheet, that are not in the aggregate greater than the amount set forth on Section 5.5(b) of the Disclosure Schedules, or (c) of a type other than those described in the foregoing clauses (a) and (b) which have arisen after September 30, 2013 in the Ordinary Course of Business (none of which is a Liability for material breach of contract, material breach of warranty, tort or infringement or a claim or lawsuit or an environmental Liability).

5.6                Absence of Certain Developments.  Except as set forth in Section 5.6 of the Disclosure Schedules and except as expressly contemplated by this Agreement, since September 30, 2013, Seller and its Affiliates have conducted the Acquired Business and its business with respect to the Purchased Assets only in the Ordinary Course of Business and Seller and its Affiliates, to the extent relating to the Acquired Business or the Purchased Assets, has not:

---

---

---

5.9                Restrictions on Business Activities.  Except as set forth in Section 5.9 of the Disclosure Schedules, there is no Contract (noncompete or otherwise), judgment, injunction, order or decree to which Seller or any Selling Affiliate is a party relating to the Acquired Business or otherwise binding upon Seller or any Selling Affiliate with respect to the Acquired Business (or that would become binding on Buyer or any of its Affiliates as a result of the execution of any of the Transaction Documents, or the consummation of the transactions contemplated hereby and thereby) which has or may have the effect of (i) prohibiting or impairing the transactions contemplated under any of the Transaction Documents; (ii) prohibiting or impairing in any material respect any business practice of the Acquired Business, any acquisition or disposition of property (tangible or intangible) relating to the Acquired Business or the conduct of the Acquired Business, (iii) impairing the Purchased Assets in any material respect or (iv) that is a Contract with a non-US governmental or quasi-governmental entity that would prohibit or impair a subsequent sale of any Business Unit or the Acquired Business, after the Closing. Seller and the Selling Affiliates have not entered into any Contract under which the operations of the Acquired Business are restricted in any material respect or which places any material restrictions upon Seller or any Selling Affiliate with respect to manufacturing, selling, licensing or otherwise distributing any of the technology or products of the Acquired Business for or to, or providing services for or to, customers or potential customers of the Acquired Business, in any geographic area, during any period of time or in any segment of the market, or that would so restrict Buyer or any of its Affiliates in any material respect following the consummation of the transactions contemplated by the Transaction Documents.

---

---

---

5.11            Litigation; Proceedings.  Except as set forth in Section 5.11 of the Disclosure Schedules, there are no actions, suits, charges, complaints, arbitrations, grievances, orders, judgments, decrees, investigations or other proceedings pending or, to the Knowledge of Seller, threatened in writing against or affecting the Acquired Business or the Purchased Assets at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, and to the Knowledge of Seller, there is no basis for any of the foregoing. Except as set forth on Section 5.11 of the Disclosure Schedules to the Knowledge of Seller, Seller has not received any opinion or legal advice in writing to the effect that Seller is exposed from a legal standpoint to any Liability which may be material to the Acquired Business or that would have a Material Adverse Effect.   Seller is not subject to any outstanding order, judgment or decree issued by any court or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or any arbitrator with respect to the Purchased Assets or the Acquired Business. As of the date hereof, there are no actions, suits, charges, complaints, arbitrations, grievances, orders, judgments, decrees, investigations or other proceedings pending or, to the Knowledge of Seller, threatened in writing against Seller at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which would materially adversely affect Seller’s performance under this Agreement and the other Transaction Documents to which Seller is a party or the consummation of the transactions contemplated hereby or thereby or the Acquired Business.

5.12            Governmental Licenses and Permits.  Section 5.12 of the Disclosure Schedules contains a complete listing and summary description of all Licenses that are primarily related to the Acquired Business.

---

---

---

---

5.15            Product Warranties.  Each product and service sold, licensed, provided or delivered by the Acquired Business has been in conformity in all material respects with all applicable contractual commitments and all express and implied warranties, and Seller has no out-of-pocket cost Liability for replacement or repair thereof or other damages in connection therewith.  Section 5.15 of the Disclosure Schedules includes copies of the standard terms and conditions of sale of the Acquired Business.  No product or service (other than a consulting service) sold, licensed, provided or delivered by the Acquired Business is subject to any guaranty, warranty, or other indemnity beyond the applicable standard terms and conditions of sale set forth on Section 5.15 of the Disclosure Schedules other than those guaranties, warranties, or other indemnities that are not, individually or in the aggregate, materially more burdensome (commercially or otherwise) on Seller than the applicable standard terms and conditions of sale set forth on Section 5.15 of the Disclosure Schedules.

5.16            Compliance with Laws.  Seller has complied with and is in compliance with, in all material respects, all applicable laws, regulations and ordinances of foreign, federal, state and local governments and all agencies thereof which are applicable to the Acquired Business, the Purchased Assets and the Scheduled Employees, and no claims have been filed against Seller alleging a violation of any such laws or regulations, and Seller has not received written notice, or to Seller’s Knowledge, oral notice, of any such violations.

5.17            Affiliate Transactions.  Except as disclosed on Section 5.17 of the Disclosure Schedules no officer, director, employee, principal stockholder or other Affiliate of Seller or any of its Affiliates or any individual related by blood, marriage or adoption to any such Person or any entity in which any such Person owns any beneficial interest (each, a “Related Party”), is a party to any Contract or transaction with Seller pertaining to the Acquired Business or the Purchased Assets or has any interest in any property, real or personal or mixed, tangible or intangible, or pertaining to the Acquired Business or the Purchased Assets.

---

---

5.19            Customers and Suppliers.  Section 5.19 of the Disclosure Schedules attached hereto contains an accurate list of the ten (10) largest customers and five (5) largest suppliers of each Business Unit for the most recently completed fiscal year and for the first six months of the current fiscal year, as measured by the dollar amounts of purchases therefrom or thereby.  Except as set forth on Section 5.19 of the Disclosure Schedules none of the suppliers listed on Section 5.19 of the Disclosure Schedules has indicated to Seller that it shall stop, or materially decrease the rate of supplying, materials, products or services to Seller with respect to the any Business Unit and no customer listed on Section 5.19 of the Disclosure Schedules has indicated to Seller that it shall (i) stop purchasing or materially decrease the volume of purchases of materials, products or services from Seller with respect to any Business Unit or (ii) seek to purchase the materials, products or services provided by Seller from any other supplier or vendor not currently providing such products and services to such customer or convert any exclusive or single-source purchasing arrangement or relationship between such customer and Seller with respect to the materials, products or services into a non-exclusive or multi-source arrangement or relationship.  With respect to each customer listed on Section 5.19 of the Disclosure Schedules there has been no change, and no such customer has requested or indicated to Seller with respect to the materials, products or services that it may request a change, in the prices or material terms at which such customer purchases materials, products or services from Seller with respect to any Business Unit.

5.20            Trade Deals and Promotions. Seller has not become bound by nor is a party to any trade deals, trade promotions or programs, sponsorships, trade refunds or cooperative programs or consumer promotions and programs (including any coupon, premiums and rebate programs), whether oral or written, with respect to the Acquired Business.

5.21            Sufficiency.  The Purchased Assets, the property and services contemplated under the Transition Services Agreement, the rights granted under the Technology Rights and Intellectual Property Licensing Agreement and the assets identified on Section 5.21 of the Disclosure Schedules constitute all of the material rights, services, property and assets (real, personal and mixed, tangible and intangible) that are necessary to conduct the Acquired Business in substantially the same manner as currently conducted.

5.22            Disclosure.  To the Knowledge of Seller, neither this Agreement, the other Transaction Documents nor any of the Schedules, Disclosure Schedules, attachments or Exhibits hereto, contain any untrue statement of a material fact or omit a material fact necessary to make each statement contained herein or therein, not misleading in light of the circumstances in which they were made.

5.23            Brokers.  Except as set forth on Section 5.23 of the Disclosure Schedules, no broker, finder or investment banker is entitled to any brokerage, finder’s or similar fee or commission in connection with the transactions contemplated by this Agreement and the other Transaction Documents based upon arrangements made by or on behalf of the Seller or any of its Affiliates.

5.24            FCPA. 

---

For the avoidance of doubt, any reference to “other thing of value” in this Section 5.24 includes meals, entertainment, travel and lodging.

For purposes of this Agreement, the “FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and any rules, regulations and guidance promulgated thereunder, and “UK Bribery Act” means Bribery Act 2010 (c.23), as amended, and any rules, regulations and guidance promulgated thereunder.

5.25            Export Control Laws.  Except as set forth on Section 5.25 of the Disclosure Schedules, the Seller and each Selling Affiliate has, since January 1, 2009, conducted in all material respects its export, re-export and import transactions with respect to the Acquired Business in accordance with (a) all applicable U.S. export and re-export control and import laws, regulations and ordinances of foreign, federal, state and local governments and all agencies thereof, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State and (b) all other applicable import/export control applicable foreign laws, regulations and ordinances in other countries in which the Sellers and Selling Affiliates conduct business. Without limiting the foregoing, (i) the Seller and each Selling Affiliate has obtained all export and import licenses, license exceptions, registrations, and other material consents, notices, waivers, approvals, orders, authorizations, declarations and filings with any governmental entity required for the export, import and re-export of products, services, software and technologies and releases of technologies and software to foreign nationals located in the United States and abroad, in all cases, with respect to the Acquired Business (“Export Approvals”); (ii) the Seller and each Selling Affiliate is in compliance with the terms of all applicable Export Approvals in all material respects; (iii) there are no pending or, to the Seller’s Knowledge, threatened claims against the Seller or the Selling Affiliates with respect to such Export Approvals or export or re-export transactions or import transactions with respect to the Acquired Business; (iv) no Export Approvals for the transfer of export licenses that constitute Purchased Assets to Buyer or any Buying Affiliate are required, or if required, such Export Approvals can be obtained expeditiously without material cost; and (v) Section 5.25 of the Disclosure Schedule sets forth the true, correct and complete export control classifications and HTS numbers applicable to the Acquired Business.

---

5.27            Limitation on Warranties.  EXCEPT AS EXPRESSLY SET FORTH IN THE TRANSACTION DOCUMENTS AS AND TO THE EXTENT REQUIRED BY THIS AGREEMENT TO BE SET FORTH IN THE DISCLOSURE SCHEDULES, SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN RESPECT OF THE PURCHASED ASSETS.  ALL OTHER REPRESENTATIONS OR WARRANTIES BY SELLER ARE HEREBY DISCLAIMED.

As a material inducement to Seller to enter into this Agreement, Buyer hereby represents and warrants to Seller (provided that the representations and warranties made as of a specified date will be true and correct as of such date) that:

6.1              Organization and Corporate Power.  Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.  Buyer is not in default under or in violation of any provision of its formation documents.

6.2              Authorization of Transactions.  Buyer has full corporate power and authority to execute and deliver this Agreement and each of the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby.  The board of directors of Buyer has duly approved this Agreement and all other Transaction Documents to which it is a party and has duly authorized the execution and delivery of this Agreement and all other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby.  No other corporate proceedings on the part of Buyer are necessary to approve and authorize the execution and delivery of this Agreement or the other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby.  This Agreement and all other Transaction Documents to which Buyer is a party have been duly executed and delivered by Buyer and constitute the valid and binding agreements of Buyer, enforceable against Buyer in accordance with their terms, except as such enforceability may be limited by principles of laws of general application relating to bankruptcy, insolvency and the relief of debtors.

---

6.3               No Conflicts.  The execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby by Buyer do not and shall not (a) conflict with or result in any breach of any of the terms, conditions or provisions of, (b) constitute a default under, (c) result in a violation of, (d) give any third party the right to modify, terminate or accelerate or cause the modification, termination or acceleration of, any obligation under, (e) result in the creation of any Lien upon the assets of Buyer, or (f) require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any court or administrative or other governmental body or agency, under (i) the provisions of Buyer’s formation documents, (ii) any contract to which Buyer is bound or affected, (iii) any law, statute, rule or regulation to which Buyer is subject or (iv) any judgment, order or decree to which Buyer is subject, except such filings and notices as may be required under the HSR Act.

6.4               Financing.  Buyer has or will at the Closing have funds sufficient to consummate the transactions contemplated by this Agreement and will have such funds at the Closing.

ARTICLE VII

7.1               Termination.  This Agreement may be terminated at any time prior to the Closing:

---

7.2               Effect of Termination.  In the event of termination of this Agreement by either Seller or Buyer as provided in Section 7.1, this Agreement shall forthwith become void and there shall be no liability on the part of any Party to any other Party or its stockholders, Affiliates, directors or officers under this Agreement, except that the provisions of Sections 9.3 (Press Release and Announcements), 9.6 (Expenses) and Article X (Miscellaneous) shall continue in full force and effect and except that nothing herein shall relieve any Party from liability for any breach of this Agreement prior to such termination.

---

---

---

---

Article VIII in respect of any indemnification claim (i) shall be reduced by any net insurance proceeds realized by and paid to the Indemnified Party in respect of such claim (determined after giving effect to any increase in premiums resulting therefrom), and (ii) shall be reduced by any amounts collected from third parties (other than the Buyer Parties or the Seller Parties) with respect to such claim.

---

---

---

9.2               Access to Information.  During normal business hours during the period prior to the earlier of the termination of this Agreement pursuant to Section 7.1 or the Closing, upon reasonable advance notice from Buyer, Seller shall, and shall cause the Selling Affiliates to, cooperate with and afford Buyer and its Affiliates and their respective accountants, counsel and other representatives, access to (i) all of Seller’s and the Selling Affiliate’s properties, assets, books, Contracts, commitments and records relating to the Acquired Business, (ii) all other information concerning the business, properties and personnel of Seller and the Selling Affiliates relating to the Acquired Business as Buyer may reasonably request and (iii) all Scheduled Employees.  Unless this Agreement is terminated pursuant to Section 7.1, Seller shall, and shall cause the Selling Affiliates to, provide to Buyer and its Affiliates and their respective accountants, counsel and other representatives copies of such workpapers, data, internal financial statements (including by returns and supporting documentation) and other backup materials and information as reasonably requested by Buyer to allow Buyer and its independent public accountants to prepare and conduct any reviews and audits, at Buyer’s expense, of the financial statements of the Acquired Business and any related Tax returns.  Any investigation pursuant to this Section 9.2 shall be conducted in such manner as not to interfere unreasonably with the conduct of the Business or any other businesses of Seller.  Notwithstanding anything to the contrary in this Agreement, Seller shall not be required to disclose any information to Buyer if such disclosure would, in Seller's sole discretion jeopardize any attorney-client privilege.

---

9.3               Press Releases and Announcements.  At and after the Closing, no press releases related to this Agreement and the transactions contemplated herein, or other public announcements to the employees or exclusive customers of the business of the Seller relating to the Purchased Assets, shall be issued without the other Party’s prior written consent; provided, however, that a Party may make any public disclosure it believes in good faith is required by applicable law or any requirement of the Nasdaq Stock Market.  No such press releases or other public announcements shall be made prior to the Closing without the prior written consent of Seller and Buyer; provided, however, that a Party may make any public disclosure it believes in good faith is required or advisable by applicable law or any requirement of the Nasdaq Stock Market.

9.4               Further Assurances.  Seller and Buyer shall, and shall cause each Selling Affiliate or Buying Affiliate, as applicable, to (i) prior to Closing, execute and deliver such further instruments of conveyance and transfer and take such additional action as any other Party may reasonably request to effect, consummate, confirm or evidence the transfer (each such document a “Transfer Document” and collectively, the “Transfer Documents”, which term includes the Affiliate Asset Purchase Agreements) to Buyer or any Buying Affiliate, as applicable, of the Purchased Assets; provided, to the extent Seller, pursuant to Section 3.3, is obligated to waive certain conditions to Closing, the Parties shall have no obligations under this Section 9.4(i); and (ii) to the extent Seller, pursuant to Section 3.3, is obligated to waive certain conditions to Closing, to use their respective best efforts to execute and deliver any Transaction Documents or Affiliate Asset Purchase Agreements that were not been executed and delivered as of or prior to the Closing, promptly following the Closing.

9.5               Specific Performance.  Notwithstanding anything to the contrary in this Agreement, Seller acknowledges that the Acquired Business and the Purchased Assets are unique and recognizes and affirms that in the event of a breach of this Agreement by Seller, money damages may be inadequate and Buyer may have no adequate remedy at law. Accordingly, Seller agrees that Buyer shall have the right, in addition to any other rights and remedies existing in its favor, to enforce its rights and Seller’s obligations hereunder not only by an action or actions for damages but also by an action or actions for specific performance, injunctive and/or other equitable relief. If any such action is brought by Buyer to enforce this Agreement, Seller hereby waives the defense that there is an adequate remedy at law.

9.6               Expenses.  Except as otherwise provided herein, each of the Parties shall pay all of its own fees, costs and expenses (including fees, costs and expenses of legal counsel, investment bankers, brokers or other representatives and consultants and appraisal fees, costs and expenses) incurred in connection with the negotiation of this Agreement, the other Transaction Documents, the performance of its obligations hereunder and thereunder, and the consummation of the transactions contemplated hereby and thereby.  Buyer and Seller shall each pay half of any filing fees associated with any filings under the HSR Act or any other competition act filing required pursuant to applicable law.

---

9.7               Exclusivity.  From and after the date hereof through and including the first to occur of the Closing and the termination of this Agreement pursuant to Article VII hereof, Seller agrees, on behalf of itself and each of its Affiliates, that neither it nor any of its respective representatives, directors, officers or employees to, directly or indirectly, (i) solicit, initiate, knowingly encourage, or induce or take any other action to in any way knowingly facilitate any inquiries or the making of any proposal that constitutes or could reasonably be expected to lead to (including by way of furnishing information or assistance) an Acquisition Proposal, (ii) engage in or otherwise participate in any negotiations or discussions concerning, provide any information to, or cooperate in any way with, any Person relating to, any Acquisition Proposal, or (iii) agree to, approve or recommend any Contract, agreement in principle, letter of intent, term sheet, or other similar instrument relating to any Acquisition Proposal; provided, that in no event shall this Section 9.7 limit Seller and its Affiliates from selling (i) Products, including the sale of non-exclusive licenses, in the Ordinary Course of Business and (ii) tangible assets of the Acquired Business in an amount less than $50,000 in the aggregate.

9.8               Transitional Assistance.  The Parties acknowledge and agree that certain transitional services will be provided as contemplated by the Transition Services Agreement.

---

---

---

9.11            Financial Information.  Seller shall furnish to Buyer any information or documents reasonably requested by Buyer, which is in Seller’s possession or to which Seller has access, constituting, or necessary for obtaining the consent of Seller’s independent accountants with respect to the use of their audit reports on the financial statements with respect to Purchased Assets for periods prior to the Closing Date and shall reasonably cooperate with Buyer in connection therewith.

9.12            Payments With Respect to Fees.   As promptly as practicable Seller (or a Selling Affiliate, to the extent applicable) shall promptly remit to Buyer all monies received by Seller or any of its Affiliates (including Selling Affiliates) following the Closing Date for any revenues attributed to Purchased Contracts for products or services delivered on or after the Closing Date.  Payments remitted to Buyer pursuant to this Section 9.12 shall be in the form received. All remittances made pursuant to this Section 9.12 shall exclude Taxes collected for the purpose of being remitted to a governmental authority.

---

9.13            Recordation of Transfer of Intellectual Property.  Buyer shall, at its sole expense, be responsible for recordations of the assignment of Intellectual Property in the discretion of Buyer.

9.14            Trademarks; Tradenames; Domain Names.  As soon as practicable after the Closing Date, Seller shall eliminate the use of all of the trademarks, trade names and service marks included in the Purchased Assets (excluding, for avoidance of doubt, Seller’s own name and derivations thereof not confusingly similar to those of the Acquired Business), in any of their forms or spellings, on all advertising, stationery, business cards, checks, purchase orders, acknowledgments, customer agreements and other contracts, business documents and marketing materials and Seller’s website; provided, however, that Seller shall be entitled to use such trademarks, trade names and service marks to the extent reasonably necessary to wind down and liquidate its business or to deal with Excluded Assets and Excluded Liabilities.  Buyer shall not use Seller’s name or Seller’s retained trademarks, trade names or service marks, except that it shall be entitled to use the foregoing to the extent constituting Purchased Assets.

9.15            Customer Litigation. Seller acknowledges and agrees that, without the prior written consent of Buyer (which shall not be unreasonably withheld after taking into account each Party’s respective benefits and burdens under the relevant Contract), neither it nor any of the Selling Affiliates, shall initiate or threaten any actions, suits, charges, complaints, arbitrations, grievances, orders, judgments, decrees, investigations or other proceedings against any (a) customer or licensee of any Business Unit or of the Acquired Business that is not also a customer or licensee of Seller under any of the provisions of any Purchased Contract or Resulting Exclusive Contract, or (b) shared customer or shared licensee of the Seller and the Acquired Business or any Business Unit for a period of 12 months following the date hereof, other than, with respect to both (a) and (b) above, for the purpose of (i) collecting accounts receivable arising thereunder following pursuit of other customary methods to collect the same, (ii) pursuing infringement of Intellectual Property not related to the Acquired Business pursuant to a Purchased Contract and (iii) to seek or enforce any Tax Collection Rights.

10.1            Amendment and Waiver.  The terms and conditions of this Agreement may be waived, or consent for the departure therefrom may be granted, only by a written document executed by the Party or Parties granting such waiver or giving such consent. This Agreement, including any provision hereof, may be amended only as set forth in a writing executed by Buyer and Seller. No course of dealing between or among any persons having any interest in this Agreement shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any Party under or by reason of this Agreement.

10.2            Notices.  For purposes of the Closing, the delivery of documents by or to the attorneys or other agents or representatives of a Party shall be deemed to constitute delivery by or to that Party.  All notices, demands and other communications given or delivered under this Agreement shall be in writing and shall be deemed to have been given when personally delivered, mailed by first class mail, return receipt requested, or delivered by express courier service or telecopied (with hard copy to follow).  Notices, demands and communications to Seller and Buyer shall, unless another address is specified in writing, be sent to the address or telecopy number indicated below:

---

 

10.3            Binding Agreement; Assignment.  This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns; provided that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any Party without the prior written consent of Seller and Buyer.  Without the prior written consent of any Party, each of Buyer and Seller, and their respective permitted assigns may at any time, in its sole discretion, assign, in whole or in part, (a) their rights and obligations pursuant to this Agreement and the other Transaction Documents to one or more of its Affiliates, or (b) its rights under this Agreement and the other Transaction Documents for collateral security purposes to any lender providing financing to Buyer, such permitted assign or any of their Affiliates, in each case, provided that no such assignment shall release any such Person of its obligations hereunder or thereunder.

10.4            Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Agreement.

10.5            Construction.  The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any person.  Subject to Section 8.2(k), if any Party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty, or covenant.  In addition, each of the Parties acknowledges and agrees that any purchase price adjustments as a result of the application of any provision of this Agreement or any other of the Transaction Documents do not prejudice or limit in any respect whatsoever any Party’s rights to indemnification under any other provision of this Agreement or any other Transaction Document, except to the extent that such a recovery would result in a duplication of damages.  The word “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation” regardless of whether such words are included in some contexts but not others. The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement.

---

10.6            Captions.  The captions used in this Agreement are for convenience of reference only and do not constitute a part of this Agreement and shall not be deemed to limit, characterize or in any way affect any provision of this Agreement, and all provisions of this Agreement shall be enforced and construed as if no caption had been used in this Agreement.

10.7            Entire Agreement.  The Schedules and Disclosure Schedules identified in this Agreement are incorporated herein by reference.  This Agreement and the documents referred to herein contain the entire agreement between the Parties and supersede any prior understandings, agreements or representations by or between the Parties, written or oral, which may have related to the subject matter hereof in any way.

10.8            Counterparts.  This Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument.

10.9            Governing Law.  All questions concerning the construction, validity and interpretation of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

10.10         Bulk Transfer Laws.  Buyer hereby waives compliance by Seller with the provisions of any so-called bulk transfer laws of any jurisdiction in connection with the sale of the Purchased Assets.

10.11         Consent to Jurisdiction.  THE PARTIES AGREE THAT JURISDICTION AND VENUE IN ANY ACTION BROUGHT BY ANY PARTY PURSUANT TO THIS AGREEMENT SHALL PROPERLY AND EXCLUSIVELY LIE IN ANY FEDERAL OR STATE COURT LOCATED IN THE STATE OF DELAWARE.  BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY WITH RESPECT TO SUCH ACTION.  THE PARTIES IRREVOCABLY AGREE THAT VENUE WOULD BE PROPER IN SUCH COURT, AND HEREBY WAIVE ANY OBJECTION THAT SUCH COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF SUCH ACTION.  THE PARTIES FURTHER AGREE THAT THE MAILING BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, OF ANY PROCESS REQUIRED BY ANY SUCH COURT SHALL CONSTITUTE VALID AND LAWFUL SERVICE OF PROCESS AGAINST THEM, WITHOUT NECESSITY FOR SERVICE BY ANY OTHER MEANS PROVIDED BY STATUTE OR RULE OF COURT.

10.12         Delivery.  This Agreement and any Transaction Document, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or electronic transmission in PDF or similar format, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person.  At the request of any party hereto or to any such contract, each other Party hereto or thereto shall re-execute original forms thereof and deliver them to all other parties.  No Party hereto or to any such contract shall raise the use of a facsimile machine or electronic transmission in PDF or similar format to deliver a signature or the fact that any signature or contract was transmitted or communicated through the use of facsimile machine or electronic transmission in PDF or similar format as a defense to the formation of a contract and each such party forever waives any such defense.

---

10.13        Waiver of Jury Trial.  EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

10.14         No Third Party Beneficiaries.  Except as expressly provided in Article VIII, this Agreement is for the sole benefit of the Parties, their heirs, legal guardians and their successors and permitted assigns and nothing herein expressed or implied shall give or be construed to give to any person, other than the Parties, their heirs, legal guardians, successors and permitted assigns, any legal or equitable rights or remedies hereunder.

---

10.15        Disclosure Schedules.  The Parties acknowledge and agree that (i) the term “Disclosure Schedules” refers to the Disclosure Schedules provided by Seller in response to, or to set forth qualifications or exceptions to, Seller’s representations and warranties in Article V, (ii) the term “Schedule” refers to the other Schedules to this Agreement and (iii) unless expressly stated therein, disclosures on any such Schedule shall not be deemed to be disclosed on any of the Disclosure Schedules, and disclosures on any of the Disclosure Schedules shall not be deemed to be disclosed on any such Schedule, for any purpose hereof.  Subject to the next sentence, each item of information disclosed in a particular Section of the Disclosure Schedules shall be deemed incorporated into, and disclosed on, each other Section of the Disclosure Schedules to the extent such disclosure sets forth facts in sufficient detail so that the relevance of the disclosure to such other Section would be reasonably apparent on its face to a reader of such disclosure. Notwithstanding the previous sentence or any other provision herein to the contrary, (i) the disclosures on Section 5.8 of the Disclosure Schedules shall not be treated as disclosed with respect to any other Disclosure Schedule or any section of the Agreement other than Section 5.8, (ii) the disclosures on Section 5.9 of the Disclosure Schedule, if any, shall not be treated as disclosed with respect to any other Disclosure Schedule or any other section of the Agreement other than Section 5.9, (iii) only those disclosures, if any, expressly set forth on Section 5.8 of the Disclosure Schedules (and not any disclosures on any other Disclosure Schedule) shall be treated as disclosed with respect to Section 5.8 hereof and (iv) only those disclosures, if any, expressly set forth on Section 5.9 of the Disclosure Schedules (and not any disclosures on any other Disclosure Schedule), shall be treated as disclosed with respect to Section 5.9 hereof.  The listing of any disclosure in the Disclosure Schedules shall not constitute any acknowledgement regarding the materiality of such disclosure.  The headings contained in the Disclosure Schedules are for convenience of reference only and shall not be deemed to modify or influence the interpretation of the information contained in the Disclosure Schedules or this Agreement.  The Disclosure Schedules may contain information not required to be disclosed pursuant to the Agreement, and the disclosure of a particular item of information in the Disclosure Schedules shall not be taken as an admission by Seller that the disclosure is required to be made under the terms of any such representation or warranty.  Any such non-required information is included solely for informational purposes, and the inclusion of such information shall not be deemed to enlarge, enhance, or diminish any of the representations or warranties of the Seller in or otherwise alter in any way the terms of the Agreement. Nothing in the Disclosure Schedules hereto shall be deemed adequate to disclose an exception to a representation or warranty made herein unless the Disclosure Schedules identifies the exception with reasonable particularity and describes the relevant facts in reasonable detail.  Without limiting the generality of the foregoing, the mere listing (or inclusion of a copy) of a document or other item on a Disclosure Schedule shall not be deemed adequate to disclose an exception to a representation or warranty made herein (unless the representation or warranty requires the listing of the document or other item itself).

*  *  *  *

---

IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or has caused this Agreement to be executed by its respective officer thereunto duly authorized, all as of the day and year first above written.

---