ASSET PURCHASE AGREEMENT

ASSET PURCHASE AGREEMENT

by and among

QUALCOMM INCORPORATED
as Purchaser,

RF MICRO DEVICES, INC.
as Parent,

and

RFMD WPAN, INC.
as Seller

Dated as of December 1, 2006

TABLE OF CONTENTS

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ARTICLE I....... PURCHASE AND SALE OF ASSETS;  ASSUMPTION OF
                          LIABILITIES............................................................................................. 1

Section 1.1............ Sale and Transfer of Assets and Assumptions of Liabilities................... 1

Section 1.2............ The Purchase Price................................................................................. 2

Section 1.3............ Assumption of Liabilities....................................................................... 2

Section 1.4............ Liabilities Not Assumed......................................................................... 2

ARTICLE II...... THE CLOSING......................................................................................    3

Section 2.1............ The Closing............................................................................................ 3

ARTICLE III...... REPRESENTATIONS AND WARRANTIES OF THE PARENT
                           AND THE SELLER...............................................................................   3

Section 3.1............ Authorization.......................................................................................... 3

Section 3.2............ Binding Agreement................................................................................. 4

Section 3.3............ Good Title Conveyed............................................................................. 4

Section 3.4............ Organization; Qualification of Parent and the Seller............................... 4

Section 3.5............ Consents and Approvals; No Violations.................................................. 4

Section 3.6............ Governmental Authorization.................................................................... 5

Section 3.7............ Restrictions on Business Activities........................................................... 5

Section 3.8............ Financial Information.............................................................................. 5

Section 3.9............ Books and Records................................................................................ 5

Section 3.10.......... Accounts Receivable.............................................................................. 5

Section 3.11.......... Disputed Accounts Payable.................................................................... 6

Section 3.12.......... Inventory................................................................................................ 6

Section 3.13.......... Equipment Held by Suppliers.................................................................. 6

Section 3.14.......... Goods Held on Consignment.................................................................. 6

Section 3.15.......... Absence of Certain Changes................................................................... 6

Section 3.16.......... Title to Properties; Encumbrances........................................................... 8

Section 3.17.......... Real Property......................................................................................... 8

Section 3.18.......... Leases................................................................................................... 8

Section 3.19.......... Equipment.............................................................................................. 8

Section 3.20.......... Environmental Matters............................................................................ 8

Section 3.21.......... Contracts and Commitments................................................................... 9

Section 3.22.......... Customers and Suppliers...................................................................... 10

Section 3.23.......... Insurance............................................................................................. 10

Section 3.24.......... Casualties............................................................................................. 11

Section 3.25.......... Litigation.............................................................................................. 11

Section 3.26.......... Compliance with Laws......................................................................... 11

Section 3.27.......... Tax Matters......................................................................................... 11

Section 3.28.......... Employee Benefit Plans........................................................................ 13

Section 3.29.......... Intellectual Property.............................................................................. 13

Section 3.30.......... Labor Matters...................................................................................... 21

Section 3.31.......... Personnel............................................................................................. 23

Section 3.32.......... Potential Conflict of Interest.................................................................. 23

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TABLE OF CONTENTS
(continued)

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Section 3.33.......... Propriety of Past Payments................................................................... 23

Section 3.34.......... Product Liability................................................................................... 24

Section 3.35.......... Brokers or Finders............................................................................... 24

Section 3.36.......... Full Disclosure...................................................................................... 24

ARTICLE IV...... REPRESENTATIONS AND WARRANTIES  OF PURCHASER.... 24

Section 4.1............ Organization......................................................................................... 24

Section 4.2............ Authorization........................................................................................ 24

Section 4.3............ Binding Agreement............................................................................... 25

Section 4.4............ Consents and Approvals; No Violations................................................ 25

Section 4.5............ Brokers or Finders............................................................................... 25

ARTICLE V....... COVENANTS....................................................................................... 25

Section 5.1............ Interim Operations of the Seller............................................................. 25

Section 5.2............ Access, Confidentiality......................................................................... 28

Section 5.3............ Efforts and Actions to Cause Closing to Occur...................................... 29

Section 5.4............ Notification of Certain Matters.............................................................. 30

Section 5.5............ No Solicitation of Competing Transaction............................................. 31

Section 5.6............ Hiring by Purchaser.............................................................................. 32

Section 5.7............ No Assumption of Labor Liabilities....................................................... 32

Section 5.8............ Seller's Non-Compete......................................................................... 32

Section 5.9............ Subsequent Actions.............................................................................. 32

Section 5.10.......... Publicity............................................................................................... 33

Section 5.11.......... Mail Received After Closing................................................................. 33

Section 5.12.......... Access to Books and Records.............................................................. 34

Section 5.13.......... Consignment Assets............................................................................. 34

Section 5.14.......... Waiver of Bulk Sales Requirement........................................................ 34

Section 5.15.......... Accounts Receivable............................................................................ 34

Section 5.16.......... Preparation and Filing of Tax Returns; Payment of Taxes.................... 35

Section 5.17.......... Seller Facility........................................................................................ 35

Section 5.18.......... Purchase Price Allocation..................................................................... 35

Section 5.19.......... Financial Information............................................................................ 36

Section 5.20.......... Retained Know-How Rights................................................................. 36

Section 5.21.......... Additional Proprietary Rights................................................................ 36

ARTICLE VI...... CONDITIONS...................................................................................... 36

Section 6.1............ Conditions to Each Party's Obligation to Effect the Closing................... 36

Section 6.2............ Conditions to Obligations of Purchaser to Effect the Closing.................. 37

Section 6.3............ Conditions to Obligations of Parent and the Seller................................. 40

ARTICLE VII..... TERMINATION................................................................................... 41

Section 7.1............ Termination.......................................................................................... 41

Section 7.2............ Effect of Termination............................................................................ 42

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TABLE OF CONTENTS
(continued)
 

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ARTICLE VIII.... INDEMNIFICATION.......................................................................... 42

Section 8.1............ Indemnification; Remedies.................................................................... 42

Section 8.2............ Indemnification Holdback..................................................................... 43

Section 8.3............ Claims Upon Indemnification Holdback................................................ 44

Section 8.4............ Objections to Claims............................................................................ 44

Section 8.5............ Resolution of Conflicts.......................................................................... 44

Section 8.6............ Third-Party Claims............................................................................... 44

Section 8.7............ Survival of Indemnification Claims......................................................... 45

Section 8.8............ Tax Effect of Indemnification Payments................................................. 45

Section 8.9............ Effect of Investigation........................................................................... 45

Section 8.10.......... Survival of Covenants, Representations and Warranties......................... 45

ARTICLE IX...... DEFINITIONS AND INTERPRETATION.......................................... 46

Section 9.1............ Definitions............................................................................................ 46

Section 9.2............ Interpretation........................................................................................ 55

ARTICLE X....... MISCELLANEOUS.............................................................................. 56

Section 10.1.......... Fees and Expenses............................................................................... 56

Section 10.2.......... Amendment and Modification............................................................... 56

Section 10.3.......... Notices................................................................................................ 56

Section 10.4.......... Counterparts........................................................................................ 57

Section 10.5.......... Entire Agreement; No Third Party Beneficiaries..................................... 57

Section 10.6.......... Severability.......................................................................................... 57

Section 10.7.......... Governing Law; Venue......................................................................... 58

Section 10.8.......... Time of Essence................................................................................... 58

Section 10.9.......... Extension; Waiver................................................................................ 58

Section 10.10........ Election of Remedies............................................................................ 58

Section 10.11........ Assignment........................................................................................... 58

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EXHIBITS AND SCHEDULES

Exhibit A     -     Form of Joint Defense Agreement
Exhibit B     -     Form of Agreement Regarding Certain Indemnity Claims
Exhibit C     -     Retained Know-How Rights
Exhibit D     -     Form of Legal Opinion
Exhibit E      -     Form of Patent Assignment
Exhibit F      -     Form of Trademark Assignment
Exhibit G     -     Assumption Agreement
Exhibit H     -     Bill of Sale

Disclosure Schedule
Schedule 5.6                -  Excluded Employees
Schedule 6.2(j)             -  Required Amendments
Schedule 9.1(A)           -  Assets
Schedule 9.1(B)           -  Assumed Contracts
Schedule 9.1(C)           -  Financial Information
Schedule 9.1(D)           -  Required Contract Consents
Schedule 9.1(E)            -  Excluded Assets
Schedule 9.1(F)            -  Excluded Business
Schedule G                   -  Assumed Liabilities
Schedule H-1               -  Assets

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ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement is made and entered into as of December 1, 2006, by and among QUALCOMM Incorporated, a Delaware corporation, RFMD WPAN, Inc., a Delaware corporation, and RF Micro Devices, Inc., a North Carolina corporation, relating to the sale of the Assets and the business as a going concern heretofore conducted by Seller as a wholly-owned subsidiary of Parent.  Certain capitalized terms used in this Agreement have the meaning assigned to them in Article IX.

WHEREAS, each of Purchaser, Parent and Seller has received requisite approval and deems it advisable and in the best interests of their respective companies and the stockholders of their respective companies that the Parent (solely with respect to the Seller and the Assets) and the Seller sell, assign, transfer and convey to Purchaser, and that Purchaser purchase from Parent (solely with respect to the Seller and the Assets) and the Seller, the Assets in exchange for cash and the assumption of the Assumed Liabilities, all according to the terms and subject to the conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements set forth herein, intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I
PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES

Section 1.1              Sale and Transfer of Assets and Assumption of Liabilities .

            (a)                Upon the terms and subject to the conditions set forth in this Agreement, effective as of the Closing:

                        (i)                 the Parent and the Seller agree to sell, assign, transfer, convey and deliver to Purchaser, and Purchaser agrees to purchase from the Parent and Seller, all of Parent's and the Seller's right, title and interest in and to the Assets, free and clear of all Encumbrances except (A) Permitted Encumbrances, (B) Encumbrances disclosed in this Agreement or the Disclosure Schedule, (C) the Assumed Liabilities, and (D) the Retained Know-How Rights; and

                        (ii)                the Parent and the Seller agree to assign to Purchaser and Purchaser shall assume from the Parent and the Seller, all of the Parent's and the Seller's rights and obligations under the Assumed Contracts, subject to the obtaining of all necessary consents by the other parties thereto.

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In connection with the transactions contemplated herein, on the Closing Date, the Parent and the Seller shall take (and shall cause their respective Affiliates to take) any and all actions that may be required, or reasonably requested by Purchaser, to transfer good and marketable title to all of the Assets free and clear of all Encumbrances (except Permitted Encumbrances, Encumbrances disclosed in this Agreement or the Disclosure Schedule, Assumed Liabilities and the Retained Know-How Rights) to Purchaser.  Parent and the Seller shall deliver possession of all of the Assets to Purchaser on or as soon as practicable after the Closing Date at Seller's principal place of business and by such means as are reasonably designated by Purchaser, and Parent and the Seller shall further deliver to Purchaser proper assignments, bills of sale, conveyances and other instruments of sale and/or transfer in forms reasonably satisfactory to Purchaser in order to convey to Purchaser good and marketable title to all Assets, free and clear of all Encumbrances (except Permitted Encumbrances, Encumbrances disclosed in this Agreement or the Disclosure Schedule, Assumed Liabilities and the Retained Know-How Rights), as well as such other instruments of sale and/or transfer as counsel to Purchaser may reasonably request (whether at or after the Closing Date) to evidence and effect the transaction contemplated herein.  Parent and the Seller agree that, to the extent any Assets are owned or held by any Affiliate of Parent or Seller, the Parent and/or Seller shall also cause good and marketable title to such Assets to be transferred and assigned to Purchaser free and clear of all Encumbrances (except Permitted Encumbrances, Encumbrances disclosed in this Agreement or the Disclosure Schedule, Assumed Liabilities and the Retained Know-How Rights) on the Closing Date.

            (b)               Notwithstanding anything herein to the contrary, Parent and Seller shall retain all of their respective rights, title and interest in and to, and Purchaser not shall acquire any interest in, the Excluded Assets.

Section 1.2              The Purchase Price .

            (a)                The aggregate consideration for the Assets shall be the assumption of the Assumed Liabilities pursuant to Section 1.3(a) and the payment of the Purchase Price (subject to adjustment as provided herein).  At Closing the Purchaser shall deliver to Seller, via wire transfer, an amount equal to the Purchase Price less (i) any Withholding Taxes deducted pursuant to Section 1.2(b), and (ii) the Indemnification Holdback.

            (b)               Purchaser may deduct from the Purchase Price any Withholding Taxes.  Purchaser shall provide Seller with evidence of payment to the appropriate taxing authorities of the withheld Withholding Taxes.  If for any reason the appropriate amount of Withholding Taxes is not withheld from the Purchase Price, any Withholding Taxes not withheld shall remain Excluded Liabilities despite such failure to withhold, and any amount in excess the actual Withholding Taxes payable shall be refunded to Parent as soon as reasonably practicable.

Section 1.3              Assumption of Liabilities .

            (a)                Subject to and upon the terms and conditions of this Agreement, effective as of the Closing Date, Purchaser agrees to assume from the Parent and/or the Seller and to thereafter pay, perform and/or otherwise discharge in a timely manner only the Assumed Liabilities.

            (b)               Nothing herein shall be deemed to deprive Purchaser or any Affiliate of Purchaser of any Defenses and Claims.  Effective as of the Closing, Parent and the Seller agree to assign, transfer and convey to Purchaser all Defenses and Claims and agree to cooperate with Purchaser to maintain, secure, perfect and enforce such Defenses and Claims.

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Section 1.4              Liabilities Not Assumed .  Except as expressly set forth in Section 1.3 above with respect to the Assumed Liabilities, Purchaser shall not assume or become liable or obligated in any way, and Parent and/or the Seller shall retain and remain solely liable for and obligated to discharge and neither Purchaser nor any Affiliate thereof shall be liable in any manner for, all debts, expenses, accounts payable, contracts, agreements, commitments, obligations, claims, suits and other liabilities of Parent or the Seller of any nature whatsoever, whether or not related to the business of the Seller or the Assets, whether known or unknown, accrued or not accrued, fixed or contingent, current or arising hereafter which is not an Assumed Liability, including, but not limited to liabilities that relate to the ownership of the Assets prior to the Closing (other than Assumed Liabilities).

ARTICLE II
THE CLOSING

Section 2.1              The Closing .  The closing of the sale and transfer of the Assets to Purchaser and the other Transactions shall take place at the offices of DLA Piper US LLP, 4365 Executive Drive, Suite 1100, San Diego, CA 92121, at 10:00 a.m., California time, on such date as shall be mutually agreed upon by the parties hereto but in any event no later than five (5) business days following the satisfaction and/or waiver of all conditions to close set forth in Article VI (other than conditions which can be satisfied only by the delivery of certificates, opinions or other documents at the Closing), unless another date or place is agreed in writing by each of the parties hereto.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE
PARENT AND THE SELLER

Except as specifically set forth in the Disclosure Schedule delivered to Purchaser simultaneously with the execution hereof, Parent and Seller jointly and severally represent and warrant to Purchaser that all of the statements contained in this Article III are true and complete as of the date of this Agreement (or, if made as of a specified date, as of such date), and will be true and complete as of the Closing Date as though made on the Closing Date.  Each exception set forth in the Disclosure Schedule and each other response to this Agreement set forth in the Disclosure Schedule is identified by reference to, or has been grouped under a heading referring to, a specific individual section or subsection of this Agreement; provided , however , that any matter set forth in one section of the Disclosure Schedule shall also be deemed to apply to each section or subsection of this Agreement, other than Sections 3.20 and 3.27 which require specific disclosure thereunder of any exception to the representations and warranties set forth therein, to which its relevance is readily apparent on its face from the specific content of the disclosure set forth in the Disclosure Schedule and Parent and Seller shall make a good faith effort to cross-reference to such other section(s) and/or subsection(s).

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Section 3.1              Authorization .  Parent and Seller have full corporate power and authority to execute and deliver this Agreement and the Ancillary Agreements (to which they will be a party) and to consummate the Transactions.  The execution, delivery and performance by Parent and Seller of this Agreement and the Ancillary Agreements (to which they will be a party) and the consummation by it of the Transactions have been duly authorized by the Board of Directors of each of Parent and Seller, and no other corporate action on the part of Parent or Seller is necessary to authorize the execution and delivery by Parent and Seller, respectively, of this Agreement, the Ancillary Agreements (to which they will be a party) or the consummation by it of the Transactions.  No vote of, or consent by, the holders of any class or series of capital stock or Voting Debt issued by Parent or Seller is necessary to authorize the execution and delivery by Parent and Seller of this Agreement, the Ancillary Agreements (to which they will be a party) or the consummation by it of the Transactions.

Section 3.2              Binding Agreement .  This Agreement has been, and the Ancillary Agreements to which they will be a party will be, duly executed and delivered by Parent and Seller and, assuming due and valid authorization, execution and delivery thereof by Purchaser, this Agreement constitutes, and each Ancillary Agreement to which it is a party will constitute, a valid and binding obligation of Parent and Seller enforceable against Parent and Seller in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors' rights generally and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought.

Section 3.3              Good Title Conveyed .  The Bill of Sale and the endorsements, assignments and other instruments to be executed and delivered by Parent and the Seller to Purchaser at the Closing will be valid and binding obligations of Parent and the Seller, enforceable in accordance with their respective terms, and will effectively vest in Purchaser good, valid and marketable title to all the Assets free and clear of all Encumbrances (except Assumed Liabilities, Permitted Encumbrances and the Retained Know-How Rights).  Except for the Excluded Assets and the Retained Know-How Rights, the Assets include all assets, properties, contracts, permits or other items that are of material importance to the ongoing operation of the business of Seller in substantially the same manner in which such business has been conducted by Seller prior to the date of this Agreement.

Section 3.4              Organization; Qualification of Parent and the Seller .  Parent and the Seller (i) are each a corporation duly organized and validly existing (and, if applicable, in good standing) under the laws of its respective state of incorporation; (ii) have full corporate power and authority to carry on the business of the Parent and the Seller, respectively, as now being conducted and to own the Assets; and (iii) are duly qualified or licensed to do business as a foreign corporation in good standing in every jurisdiction in which the conduct of the business of the Seller requires such qualification, except where failure to so qualify or be licensed would not have a Material Adverse Effect on the ability of Parent or Seller to consummate the Transactions.  Seller has heretofore delivered to Purchaser complete and correct copies of the certificate or articles of incorporation and bylaws of Parent and Seller, respectively, as currently in effect.  All of the outstanding capital stock of Seller is owned directly by Parent.  The Seller has no Subsidiaries.

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Section 3.5              Consents and Approvals; No Violations .  Except for the filings, permits, authorizations, consents and approvals as may be required under, and other applicable requirements of, the Exchange Act, the HSR Act and state securities or blue sky laws, none of the execution, delivery or performance of this Agreement or any Ancillary Agreement to which they will be a party by Parent and Seller, the consummation by Parent and Seller of the Transactions or compliance by Parent and Seller with any of the provisions hereof will (i) conflict with or result in any breach of any provision of the certificate or articles of incorporation, the bylaws or similar organizational documents of Parent or Seller, (ii) require any filing with, or permit, authorization, consent or approval of, any Governmental Entity or other Person (including, without limitation, consents from parties to loans, contracts, leases and other agreements to which Parent or Seller is a party), except for those filings, permits, authorizations, consents or approvals with respect to which failure to obtain would not result in a Material Adverse Effect to Seller, (iii) require any consent, approval or notice under, or result in a violation or breach of, or constitute (with or without due notice or the passage of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration, or otherwise result in a Material Adverse Effect or the loss of any material rights to Parent, Seller or Purchaser) under, any of the terms, conditions or provisions of any agreement to which the Parent or Seller is a party or by which the Assets are bound, or (iv) violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Assets of the Parent or Seller.

Section 3.6              Governmental Authorization .  Parent (solely with respect to the Seller and the Assets) and Seller (with respect to the Assets) has obtained each federal, state, county, local or foreign governmental consent, license, permit, grant, or other authorization of a Governmental Entity (a) pursuant to which the Parent or Seller currently operates or holds any interest in any of the Assets; or (b) that is required for the Assets or the operation of the business of Seller or the holding of any such interest and all of such authorizations are in full force and effect, except where the failure to obtain or have any such authorizations, consents, licenses, permits, or grants could not reasonably be expected to have a Material Adverse Effect.

Section 3.7              Restrictions on Business Activities .  There is no agreement, judgment, injunction, order or decree binding upon Parent or Seller that has or could reasonably be expected to have the effect of prohibiting or materially impairing the full use and enjoyment of the Assets, any current business practice of Seller by Purchaser (other than such practices as are solely related to the Excluded Business), or the conduct of the business of Seller (other than the Excluded Business) by Purchaser as such business is currently conducted by Seller.

Section 3.8              Financial Information .  Parent and Seller have previously furnished to Purchaser  the Financial Information.  The Financial Information has been prepared from, is in accordance with and accurately reflects in all material respects the books and records of Parent and the Seller.

Section 3.9              Books and Records .  The books of account, Financial Information, minute books, stock record books and other records of Parent (solely with respect to the Seller and any of the Assets) and the Seller are complete and correct in all material respects and have been maintained in accordance with sound business practices. 

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Section 3.10          Accounts Receivable .  All accounts receivable of the Parent and Seller (solely with respect to Assets that constitute accounts receivable and not with respect accounts receivable that are Excluded Assets), whether reflected in the Financial Information or otherwise, have arisen solely out of bona fide sales and deliveries of goods, performance of services, and other business transactions in the ordinary course of business consistent with past practices in each case with Persons other than Affiliates, are not subject to any prior assignment, lien or security interest and, to the Knowledge of Parent and Seller, are not subject to valid defenses, set-offs or counter claims, and are current and collectible net of any reserves shown in the Financial Information.  Subject to such reserve, each of the accounts receivable included in the Assets either has been collected in full or will be collected in full, without any set-off, within sixty (60) days after the day on which it became due and payable.

Section 3.11          Disputed Accounts Payable .  There are no unpaid invoices or bills representing amounts alleged to be owed by Parent on account of the Seller or alleged to be owed by Seller or other alleged obligations of the Seller, in each case with respect to the Assets, which Parent or Seller has disputed or determined to dispute or refuse to pay.

Section 3.12          Inventory .  All of the inventories of the Parent and Seller (solely with respect to inventory items that are included in the Assets and not with respect to inventory items that are Excluded Assets), whether reflected in the Financial Information or otherwise, consist of a quality and quantity usable and salable in the ordinary and usual course of business, except for items of obsolete materials and materials of below-standard quality, all of which items have been written off or written down as reflected in the Financial Information or for which adequate reserves have been provided therein.  All inventories included in the Assets and not written off have been priced at the lower of average cost or market.  All finished goods inventory included in the Assets is, to the Knowledge of Parent and Seller, free of any Defect.  Except for Defects in work in process inventory that arise in the ordinary course of business consistent with past practice and industry norms, all work in process inventory included in the Assets is, to the Knowledge of Parent and Seller, free of any Defect.

Section 3.13          Equipment Held by Suppliers .  The Disclosure Schedule lists each pattern, die and tooling included in the Assets and owned by Parent for the benefit of the Seller or owned by Seller which is not in the possession of the Parent or Seller, if any, together, in each case, with the name, address and telephone number of each Person who holds such property.

Section 3.14          Goods Held on Consignment .  The Disclosure Schedule lists all goods that constitute Assets, if any, owned by Parent (for the benefit of the Seller) or the Seller which goods have been consigned by Parent or Seller to another Person, together, in each case, with a description of the terms of such consignment and the name, address and telephone number of the Person to whom such property has been consigned.

Section 3.15          Absence of Certain Changes .  Since September 30, 2006, each of the Parent (solely with respect to the Seller or any of the Assets) and the Seller has conducted its respective business only in the ordinary and usual course consistent with past practice, and neither the Parent (solely with respect to the Seller or any of the Assets) nor the Seller has:

            (a)                suffered any change in its working capital, financial condition, results of operation, assets, liabilities (absolute, accrued, contingent or otherwise), reserves, business, operations or prospects that has resulted in, or could reasonably be expected to result in a Material Adverse Effect;

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            (b)               incurred any liability or obligation (absolute, accrued, contingent or otherwise) except non-material items incurred in the ordinary course of business and consistent with past practice, none of which exceeds $50,000 (counting obligations or liabilities arising from one transaction or a series of similar transactions, and all periodic installments or payments under any lease or other agreement providing for periodic installments or payments, as a single obligation or liability);

            (c)                paid, discharged or satisfied any material claim, material liability or material obligation (whether absolute, accrued, contingent or otherwise) other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice;

            (d)               permitted or allowed any of the Assets to be subjected to any Encumbrance, except for liens for current taxes not yet due;

            (e)                written down the value of any inventory included in the Assets or written off as uncollectible any notes or accounts receivable included in the Assets, except for immaterial write-downs and write-offs in the ordinary course of business and consistent with past practice;

            (f)                 cancelled any debts with respect to the business of the Seller or the Assets or waived any claims or rights of substantial value with respect to the business of the Seller or the Assets;

            (g)                acquired, sold, transferred, or otherwise disposed of any Assets, except in the ordinary course of business and consistent with past practice;

            (h)                disposed of or permitted to lapse any rights to the use of any Proprietary Rights;

            (i)                  granted any general increase in the compensation of officers or employees (other than Excluded Employees) of the Seller (including any such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) or any other increase in the compensation payable or to become payable to any officer or employee (other than an Excluded Employee) of the Seller, other than in the ordinary course of business and consistent with past practices;

            (j)                 made any single capital expenditure or commitment in excess of $50,000 for additions to property, plant, equipment or intangible capital assets or made aggregate capital expenditures and commitments in excess of $100,000 (on a Seller-wide basis) for additions to property, plant, equipment or intangible capital assets;

            (k)               declared, paid or set aside for payment any dividend or other distribution in respect of its capital stock, except dividends with respect to Parent's or Seller's capital stock in property which does not constitute a part of the Assets or in cash;

            (l)                  paid, loaned or advanced any amount to, or sold, transferred or leased any Assets to, or entered into any agreement or arrangement with, any of its officers or directors or any Affiliate or Associate of any of its officers or directors except for (i) compensation to officers at rates not exceeding the rates of such fees and compensation in at September 30, 2006 and (ii) expense reimbursements and advances in the ordinary course of business consistent with past practice; or

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            (m)              agreed, whether in writing or otherwise, to take any action described in this section.

Section 3.16          Title to Properties; Encumbrances .  Except for property sold since September 30, 2006 in the ordinary course of business and consistent with past practice, each of Parent and Seller has good, valid and marketable title to all of the Tangible Personal Property that each of them purports to own free and clear of all Encumbrances (other than Permitted Encumbrances).  The Assets to be conveyed to Purchaser and the Assumed Contracts to be assumed by Purchaser upon consummation of the Transactions include all rights, properties and other assets used by Parent and Seller to conduct the Seller's business (other than the Excluded Business), or necessary to permit Purchaser to conduct such business after the Closing in all material respects in the same manner as such business has been conducted by Seller prior to the Closing, except for the Excluded Assets, the Retained Know-How Rights and Assets sold since the date of this Agreement in the ordinary course of business and consistent with past practice.

Section 3.17          Real Property .  The Disclosure Schedule sets forth a complete list and the location of all Real Property.  To the Knowledge of Parent and the Seller, there are no proceedings, claims, or disputes affecting any Real Property that might interfere with the current use of the Seller Facility.

Section 3.18          Leases .  The Disclosure Schedule contains an accurate and complete description of the terms of each Lease.  A true and complete copy of each Lease has heretofore been delivered to Purchaser.  Each Lease is valid, binding and enforceable in accordance with its terms and is in full force and effect.  The leasehold estate created by each Lease is free and clear of all Encumbrances (other than Permitted Encumbrances).  There are no existing defaults by Parent or Seller under any of the Leases.  No event has occurred that (whether with or without notice, lapse of time or the happening or occurrence of any other event) would constitute a default by Parent or Seller under any Lease.  To the Knowledge of Parent and Seller, the lessor under each Lease will consent (where such consent is necessary) to the consummation of the Transactions without requiring any modification of the rights or obligations of the lessee thereunder.

Section 3.19          Equipment .  The equipment included in the Assets that is owned or used by the Parent or Seller has no known defects and is in good operating condition and repair, ordinary wear and tear excepted.  None of the equipment included in the Assets is in need of maintenance or repairs except for ordinary, routine maintenance and repairs which are not material in nature or cost.

Section 3.20          Environmental Matters .

            (a)                Each of Parent (solely with respect to the Seller and Parent's use of the Assets) and the Seller is in compliance in all material respects with all Environmental Laws.  Such compliance includes, but is not limited to, the possession by Seller (and Parent's use of the Assets) of all permits and other governmental authorizations required under all applicable Environmental Laws with respect to the Assets, and compliance with the material terms and conditions thereof.  Each such permit and other governmental authorization pursuant to the Environmental Laws is specifically identified in the Disclosure Schedule.

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            (b)               To the Knowledge of Parent and Seller, neither Parent (solely with respect to the Seller or Parent's use of the Assets) nor Seller has received any communication (written or oral), whether from a Governmental Entity, citizens group, employee or otherwise, that alleges that the Assets are not, and the use thereof has not been, in full compliance with any Environmental Laws, and neither Seller nor Parent (solely with respect to Seller's or Parent's use of the Assets) are aware of any circumstances that may prevent or interfere with such full compliance in the future.  Parent and Seller have delivered to Purchaser prior to the execution of this Agreement all environmental reports that are in the possession of or reasonably available to the Parent and the Seller regarding the Assets.

            (c)                There is no Environmental Claim by any Person that is pending or, to the Knowledge of Parent and Seller, threatened against Parent or Seller or against any Person whose liability for any Environmental Claim Parent or Seller has assumed under any of the Assumed Contracts relating to the Assets.

            (d)               To the Knowledge of Parent and Seller, there are no past or present actions, activities, circumstances, conditions, events or incidents caused by Seller or Parent (solely with respect to the Assets) or against any Person whose liability for any Environmental Claim Parent or Seller has assumed under any of the Assumed Contracts, including the release, emission discharge, presence or disposal of any Materials of Environmental Concern by Seller, that are in violation of Environmental Laws related to the Assets.

            (e)                Without in any way limiting the generality of the foregoing, (i) Seller has stored, disposed or arranged for the disposal of Materials of Environmental Concern in compliance in all material respects with Environmental Laws, (ii) to the Knowledge of Parent and Seller, there is no asbestos contained in or forming part of any of the Assets, and (iii) to the Knowledge of Parent and Seller, no PCBs or PCB-containing items are used or stored at the premises covered by Section 5.17.

            (f)                 The Assets are not subject to any removal or remediation action currently in effect relating to Materials of Environmental Concern.

Section 3.21          Contracts and Commitments .

            (a)                Other than the Assumed Contracts, none of Parent or Seller has any agreements, contracts, commitments or restrictions which are material to Seller's business, including the operations and prospects thereof (other than such agreements, contracts, commitments or restrictions relating solely to the Excluded Business). 

            (b)               No purchase contracts or commitments under the Assumed Contracts continue for a period of more than 12 months from the Closing Date.

            (c)                Each of the Assumed Contracts is cancellable on notice of not longer than 30 days and without liability, penalty or premium or the payment of any other additional amount to which the other party to such agreement would not otherwise be entitled.

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            (d)               None of Parent or Seller has any employment agreement, or any other agreement that contains any severance or termination pay, bonus or sales commission or similar liabilities or obligations, with any director, officer, employee, agent, consultant or advisor of Seller.

            (e)                None of Parent (solely with respect to the Seller and the Assets) or Seller is in material default under or in material violation of, nor to the Knowledge of Parent and Seller is there any valid basis for any claim of material default under or material violation of, any contract, commitment or restriction to which it is a party or by which it is bound.

            (f)                 None of Parent (solely with respect to the business of Seller) or Seller (solely with respect to the Assumed Contracts or as otherwise applicable to the Assets) is restricted by agreement from carrying on its business anywhere in the world.

            (g)                With respect to each Assumed Contract:  (i) the Assumed Contract is legal, valid, binding and enforceable and in full force and effect with respect to Parent or Seller, as applicable, and to the Knowledge of Parent and Seller is legal, valid, binding, enforceable and in full force and effect with respect to each other party thereto, in either case subject to the effect of bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors' rights generally and except as the availability of equitable remedies may be limited by general principles of equity; (ii) to the Knowledge of Parent and Seller, the Assumed Contract will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with its terms as in effect prior to the Closing, subject to the effect of bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors' rights generally and except as the availability of equitable remedies may be limited by general principles of equity; and (iii) neither Parent, Seller, nor to the Knowledge of Parent and Seller, any other party, is in breach or default in any material respect, and no event has occurred (or by entering into this Agreement will occur) that with notice or lapse of time would constitute a breach or default in any material respect by Parent or Seller, as applicable, or, to the Knowledge of Parent and Seller, by any such other party, or permit termination, or modification of, or acceleration of any payment due under, such Assumed Contract, and no notice of any such alleged breach or default has been served on or received by Parent or Seller.

Section 3.22          Customers and Suppliers .  Part 3.22 of the Disclosure Schedule lists, by dollar volume paid for the year ended March 31, 2006, the material customers of Seller and the material suppliers of Seller (in each case solely with respect to Seller Products that are included in the Assets).  With respect to such customers and suppliers:  (a) all amounts owing from such customers and suppliers, if not in dispute, have been paid substantially in accordance with their respective terms; (b) none of such customers or suppliers within the last twelve (12) months has threatened in writing to cancel, or otherwise terminate, the relationship of such person with Seller; and (c) none of such customers or suppliers during the last twelve (12) months has decreased materially or threatened to decrease or limit materially, its relationship with Seller or, to the Knowledge of Parent and the Seller, intends to decrease or limit materially its purchases from, or sales to, Seller.

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Section 3.23          Insurance .  The Disclosure Schedule sets forth a true and complete list and description of all claims paid out or pending under all insurance policies, other insurance arrangements and other contracts or arrangements for the transfer or sharing of insurance risks by the Parent or Seller in force on the date hereof with respect to the business of the Seller or any of the Assets (and the use thereof).

Section 3.24          Casualties .  Since September 30, 2006, none of the Assets has been affected in any way as a result of flood, fire, explosion or other casualty (whether or not material and whether or not covered by insurance).

Section 3.25          Litigation .

            (a)                There is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any Governmental Entity, foreign or domestic, or, to the Knowledge of Parent and the Seller, threatened against Parent (solely with respect to the Seller or Parent's use of any of the Assets) or the Seller, or any of the Seller's properties or any of the Seller's officers or directors (in their capacities as such).

            (b)               There is no judgment, decree or order against Parent (solely with respect to the Seller or Parent's use of the Assets) or Seller or, to the Knowledge of Parent and the Seller, any of Seller's directors or officers (in their capacities as such), that (i) restricts in any manner the use, transfer or licensing of any Proprietary Rights in which Parent (solely with respect to Seller or any of the Assets) or Seller has (or purports to have) any right, title or interest; (ii) could prevent, enjoin, or materially alter or delay any of the Transactions or (iii) that could reasonably be expected to have a Material Adverse Effect on Seller or any of the Assets.

            (c)                All litigation to which Parent (solely with respect to Seller or Parent's use of the Assets) or Seller is a party (or, to the Knowledge of Parent and the Seller), threatened to become a party) is described in the Disclosure Schedule.

Section 3.26          Compliance with Laws .  Parent and Seller have complied in all material respects with all laws, rules and regulations, ordinances, judgments, decrees, orders, writs and injunctions of all United States federal, state, local, foreign governments and agencies thereof that affect the Assets or the business of the Seller, and no notice, charge, claim, action or assertion has been received by Parent (solely with respect to the Seller or any of the Assets) or Seller or has been filed, commenced or, to the Knowledge of Parent and the Seller, threatened against Parent (solely with respect to the Seller or any of the Assets) or Seller alleging any violation of any of the foregoing.

Section 3.27          Tax Matters .

            (a)                Parent (solely with respect to the Seller) and Seller have complied in all respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes and have, within the time and the manner prescribed by law, withheld and paid over to the proper taxing authorities all amounts required to be withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.

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            (b)               No federal, state, local or foreign audits, examinations, investigations or other administrative proceedings or court proceedings are presently pending with regard to any Taxes or Tax Returns of Parent (solely with respect to the Seller) or Seller.  A list of all audits, examinations or investigations commenced or completed with respect to Parent (solely with respect to the Seller), or Seller with respect to taxable periods ending after March 31, 2003 is set forth in the Disclosure Schedule.

            (c)                There are no liens for Taxes upon the Assets, except for statutory liens for Taxes not yet due.

            (d)               All Tax deficiencies that have been claimed, proposed or asserted against Parent (solely with respect to the Seller or any of the Assets) or Seller have been fully paid or finally settled, and no issue has been raised in any examination by any taxing authority that, by application of similar principles, could reasonably be expected to result in the proposal or assertion of a Tax deficiency for another year not so examined.

            (e)                No power of attorney has been granted by or with respect to Parent (solely with respect to the Seller or any of the Assets) or Seller with respect to any matter relating to Taxes.

            (f)                 None of Parent or Seller is a party to, is bound by or has any obligation under any Tax sharing agreement, Tax indemnification agreement or similar contract or arrangement, and none of Parent or Seller has any potential liability or obligation to any Person as a result of, or pursuant to, any such agreement, contract or arrangement.

            (g)                None of Parent or Seller has filed a consent to the application of Section 341(f) of the Code, or agreed to have Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset (as such term is defined in Section 341(f)(4) of the Code) owned by Parent or Seller.

            (h)                None of the Parent or Seller is or has been a U.S. real property holding company (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(ii) of the Code.

            (i)                  Other than any Tax Returns that have not yet been required to be filed, Parent and Seller have made available to Purchaser true and complete copies of the state and local sales, use and property Tax Return of Parent and Seller for each of the taxable years ended in 2003, 2004 and 2005.

            (j)                 Parent and Seller have delivered to Purchaser complete and accurate copies of each of (i) all audit reports, letter rulings, technical advice memoranda and similar documents issued by a Governmental Entity relating to the federal, state, local or foreign Taxes due from or with respect to Seller and/or any of the Assets and (ii) all closing agreements entered into by or on behalf of Seller or with respect to any of the Assets with any taxing authority in each case existing on the date hereof.

            (k)               All Taxes owed and due by Parent (solely with respect to the Seller or the Assets) or Seller (whether or not shown on any Tax Return) have been paid on a timely basis.

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            (l)                  Parent and Seller have duly filed all Tax Returns relating to the Seller or the Assets that are required to be filed and have duly paid or caused to be duly paid in full all Taxes relating to Seller or the Assets required to be paid for all periods or portions thereof ending through the date hereof.  All such Tax Returns are correct and complete in all material respects and accurately reflect all liability for such Taxes for the periods covered thereby.

            (m)              None of Parent (solely with respect to Seller or the Assets) or Seller has received written notice of any claim made by an authority in a jurisdiction where Parent or Seller does not file Tax Returns, that Parent (solely with respect to Seller or the Assets) or Seller is or may be subject to taxation by that jurisdiction.

            (n)                None of Parent (solely with respect to Seller or the Assets) or Seller has waived any statute of limitations in any jurisdiction in respect of Taxes or Tax Returns relating to the Seller or the Assets or agreed to any extension of time with respect to a Tax assessment or deficiency relating to the Seller or the Assets nor is any request to do so outstanding.

            (o)               None of the Assets is or will be required to be treated as being owned by another person pursuant to section 168(f)(8) of the Code (as in effect prior to the amendment by the Tax Reform Act of 1986) or is "tax-exempt use property" within the meaning of section 168 of the Code.

Section 3.28          Employee Benefit Plans .

            (a)                The Disclosure Schedule lists each Plan covering the employees of Seller.

            (b)               None of the Plans is a pension plan (within the meaning of Section 3(2) of ERISA) that is subject to Title IV of ERISA or a multiemployer plan (within the meaning of Section 3(37) or 4001(3) of ERISA) that is subject to Title IV of ERISA.  None of the Assets is subject to a lien arising under Section 3.02 of ERISA or Title IV of ERISA, nor has any event occurred that could reasonably be expected to give rise to any such lien.

            (c)                Except as required by law, no Plan provides medical or dental coverage following retirement or other termination of employment.

Section 3.29          Intellectual Property .

            (a)                Part 3.29(a) of the Disclosure Schedule lists the following with respect to Proprietary Rights of the Parent (solely with respect to Proprietary Rights included in the Assets) and Seller:

                        (i)                  Part 3.29(a)(i)(A) of the Disclosure Schedule list all of the Patents owned by the Seller and the Parent (to the extent such Patents are included in the Assets), setting forth in each case the jurisdictions in which Issued Patents have been issued and Patent Applications have been filed.  Part 3.29(a)(i)(B) of the Disclosure Schedule lists all of the Patents in which the Seller and the Parent (to the extent such Patents are included in the Assets) have any right, title or interest (including without limitation interest acquired through a license or other right to use) other than those owned by the Seller and the Parent (to the extent such Patents are included in the Assets), setting forth in each case the jurisdictions in which the Issued Patents have been issued and Patent Applications have been filed, and the nature of the right, title or interest held by the Seller and Parent.

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                        (ii)                Part 3.29(a)(ii)(A)-1 and Part 3.29(a)(ii)(A)-2 of the Disclosure Schedule lists all of the Registered Trademarks and domain names and domain name registrations owned by the Seller and the Parent (in each case, to the extent such Registered Trademarks, domain names and domain registrations are included in the Assets), setting forth in each case the jurisdictions in which Registered Trademarks and domain names and domain name registrations have been registered and trademark and domain name applications for registration have been filed and all other Trademarks owned by the Seller and the Parent (in each case, to the extent such other Trademarks are included in the Assets) or used in connection with any Seller Products or in the conduct of the business of the Seller(other than Trademarks used solely in the Excluded Business).  Part 3.29(a)(ii)(B) of the Disclosure Schedule lists all of the Registered Trademarks, all other Trademarks and all domain names used in connection with any Seller Products or in the conduct of the business of the Seller (other than Trademarks and domain names used solely in the Excluded Business) in each case in which the Seller and the Parent have any right, title or interest, other than those owned by the Seller and the Parent (including without limitation interest acquired through a license or other right to use), setting forth each case the jurisdictions in which Registered Trademarks have been registered and trademark applications for registration have been filed, and the nature of the right, title or interest held by the Seller and the Parent.

                        (iii)               Part 3.29(a)(iii)(A) lists all of the Registered Copyrights owned by the Seller and the Parent (in each case, to the extent such Registered Copyrights are included in the Assets), setting forth in each case the jurisdictions in which such Copyrights have been registered and applications for copyright registration have been filed and lists all proprietary software, middleware and firmware distributed by the Seller and the Parent (in each case, to the extent included in the Assets).  Part 3.29(a)(iii)(B) lists all of the Registered Copyrights in which the Seller and the Parent (in each case, to the extent such Registered Copyrights are included in the Assets) has any right, title or interest, other than those owned by the Seller and Parent and other than in Off-the-Shelf Software (including without limitation interest acquired through a license or other right to use), setting forth in each case the jurisdictions in which the Registered Copyrights have been registered and applications for Copyright registration have been filed, and the nature of the right, title or interest held by the Seller.

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            (b)               The Seller and the Parent are the sole and exclusive owners of and have good, valid and marketable title to, free and clear of all IP Encumbrances, except for the Retained Know-How Rights and any Permitted Encumbrances, (i) all of the Seller Proprietary Rights identified in Parts 3.29(a)(i)(A) and 3.29(a)(iii)(A) of the Disclosure Schedule, (ii) except for Copyrights in Off-the-Shelf Software and Copyrights licensed to the Seller or the Parent by third Persons as disclosed in the Disclosure Schedule, all Copyrights in software, middleware and firmware used or distributed by the Seller and the Parent (in each case, to the extent included in the Assets), and (iii) all Trade Secrets owned by the Seller or the Parent (to the extent included in the Assets).  To the Knowledge of Parent and Seller, Seller and Parent have a valid, legally enforceable right to use, license, practice and otherwise exploit all Proprietary Rights identified in Parts 3.29(a)(i)(B), 3.29(a)(ii)(B), and 3.29(a)(iii)(B) of the Disclosure Schedule (to the extent such party indicates having such rights therein) and all other Proprietary Rights used by the Seller and the Parent (in each case, to the extent included in the Assets), other than those owned by the Seller and Parent (including without limitation any interest acquired through a license or other right to use).  To the Knowledge of Parent and Seller, the Seller Proprietary Rights identified in Part 3.29(a) of the Disclosure Schedule, together with the Trade Secrets used by the Seller and Parent (in each case, to the extent included in the Assets), constitutes all Proprietary Rights used or currently proposed by Seller to be used or necessary in connection with the conduct of the business of the Seller (other than the Excluded Business) as conducted prior to or on the date of this Agreement and as proposed to be conducted by the Seller, including without limitation as necessary or appropriate to make, use, offer for sale, sell or import the Seller Products; provided, however, that if Parent or Seller subsequently become aware of additional Proprietary Rights so used (" Additional Proprietary Rights "), Parent and Seller shall promptly convey all right, title and interest to such Additional Proprietary Rights to Purchaser in accordance with Section 5.9(a).  To the Knowledge of the Parent and the Seller, all Proprietary Rights used by the Seller and Parent (in each case, to the extent included in the Assets), other than those owned by the Seller and Parent  (including without limitation interests acquired through a license or other right to use, but excluding any Off-the-Shelf Software) are free and clear of IP Encumbrances and the Seller and Parent have not received any notice that any portion of such Proprietary Rights are subject to any IP Encumbrance.

            (c)                Part 3.29(c) of the Disclosure Schedule lists all oral and written contracts, agreements, licenses and other arrangements relating to any Seller Proprietary Rights or any Seller Products (other than this Agreement and the Ancillary Agreements), in each case unless solely related to the Excluded Business, as follows:

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                        (i)                  Part 3.29(c)(i) lists any agreement, contract, license or other arrangement, written or oral, (A) granting any Person any right to make, have made, manufacture, use, sell, offer to sell, import, export, or otherwise distribute any Seller Product, with or without the right to sublicense the same; (B) granting any license of, any covenant not to assert/sue or other immunity from suit under or any other rights to any current or future Proprietary Rights, with or without the right to sublicense the same granted to or granted by the Parent (solely with respect to the Seller's business (other than the Excluded Business) or any of the Assets) or Seller (in each case, other than licenses granted to the Parent or Seller for Off-the-Shelf Software); (C) regarding joint development of any Seller Products or Proprietary Rights; (D) by which the Parent or the Seller grants any ownership right or title to any Seller Proprietary Rights owned by the Parent (solely with respect to Seller or any of the Assets) or Seller or by which the Parent or Seller is assigned or granted an ownership interest in any Proprietary Rights (solely with respect to the Parent to the extent included in the Assets) other than agreements with employees and contractors that assign or grant to the Parent or Seller  ownership of Proprietary Rights developed in the course of providing services by such employees and contractors; (E) under which the Parent or the Seller undertakes any ongoing royalty or payment obligations with respect to any Seller Proprietary Rights; (F) under which the Seller grants or receives an option or right of first refusal relating to any Proprietary Rights (other than Proprietary Rights related solely to the Excluded Business) or under which the Parent grants a right of first refusal with respect or relating to any Seller Proprietary Rights or any Assets; (G) under which any third party is granted any right to access or to use Seller Source Code, including without limitation to create derivative works of Seller Products; (H) pursuant to which the Parent or the Seller has deposited or is required to deposit with an escrow agent or any other Person any Seller Source Code or other Seller Proprietary Rights or any of the Assets, and further describes whether the execution of this Agreement or the consummation of any of the Transactions could reasonably be expected to result in the release or disclosure of any Seller Source Code; and (I) limiting the ability of the Parent (solely with respect to the Seller's business (other than the Excluded Business) or any of the Assets) or Seller to transact business (other than the Excluded Business) in any market, field or geographical area or with any Person, or that restricts the use, sale, transfer, delivery or licensing of Seller Proprietary Rights (or any tangible embodiment thereof), including without limitation any covenant not to compete;

                        (ii)                Part 3.29(c)(ii) lists any agreement, contract, license or other arrangement, written or oral, to which the Parent or the Seller is a party and pursuant to which the Parent or Seller (in each case, solely with respect to Seller's business other than the Exclude Business) is authorized to use any Proprietary Rights owned by any Person, excluding nonexclusive licenses for Off-the-Shelf Software.  Except as set forth in Part 3.29(c)(ii) of the Disclosure Schedule, none of the Parent or Seller has any obligation to pay any royalties, license fees or other amounts or provide or pay any other consideration to any Person by reason of the ownership, use, exploitation, practice, sale or disposition of Seller Proprietary Rights (or any tangible embodiment thereof) or other Assets or the reproducing, making, using, selling, offering for sale, distributing or importing any Seller Products;

                        (iii)               Except as set forth in Part 3.29(c)(iii) of the Disclosure Schedule, neither the Parent nor Seller has entered into any written or oral contract, agreement, license or other arrangement to defend, indemnify or hold harmless any Person against any charge of infringement of any Proprietary Rights included in the Assets, other than indemnification provisions contained in standard sales agreements with customers or end users or other agreements arising in the ordinary course of business and copies of all Assumed Contracts containing such provisions have been delivered to Purchaser or its counsel;

                        (iv)              Part 3.29(c)(iv) of the Disclosure Schedule lists each Seller Product that contains any Public Software, a description of such Seller Product and the Public Software license applicable to such Seller Product.  Except as set forth in Part 3.29(c)(iv) of the Disclosure Schedule, no Public Software forms part of any software, firmware or middleware included in any Seller Product, and no Public Software was or is used in connection with the development of any Seller Product or is incorporated into, in whole or in part, or has been distributed by Seller (or, to the Knowledge of Seller and Parent, any third party, with, in whole or in part, any Seller Product; and

                        (v)                Neither the Parent nor Seller or to the Knowledge of Parent and Seller, any other Person, is in breach of any contract, agreement, license or other arrangement described in this Section 3.29(c) and none of the Parent or Seller has notified any Person and no Person has notified the Parent or Seller of any such breach.

            (d)               Except with respect to Proprietary Rights listed in Part 3.29(a)(ii)(A)-2 of the Disclosure Schedule or as set forth in Part 3.29(d) of the Disclosure Schedule:

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                        (i)                  Neither the Parent nor Seller jointly owns, licenses or claims any right, title or interest with any other Person (other than Parent or Seller) of any Seller Proprietary Rights (other than Seller Proprietary Rights that relate exclusively to the Excluded Business).  To the Knowledge of Parent and Seller, no current or former officer, manager, director, stockholder, member, employee, consultant or independent contractor of the Parent or Seller has any right, title, claim or interest in, to or under any Seller Proprietary Rights in which the Parent (in each case, to the extent included in the Assets) or Seller has (or purports to have) any right, title or interest that has not been either (a) irrevocably assigned or transferred to Parent or Seller, or (b) licensed (with the right to grant sublicenses) to the Parent or Seller under an exclusive, irrevocable, worldwide, royalty free, fully paid and assignable license.

                        (ii)                No Person has challenged or, to the Knowledge of Parent and Seller, threatened to challenge, and no Person has asserted or made a demand or, to the Knowledge of Parent and Seller, threatened to make a claim or a demand, nor is there any pending proceeding nor, to the Knowledge of Parent and Seller, are there any facts which could reasonably be expected to give rise to any such challenge, claim, demand or proceeding, which would adversely affect (a) any right, title or interest of the Parent or Seller in, to or under any Seller Proprietary Rights, (b) any contract, agreement, license or and other arrangement under which the Parent or Seller claims any right, title or interest under any Seller Proprietary Rights or restricts in any material respect the use, manufacture, transfer, sale, delivery or licensing by the Parent or Seller of the Seller Proprietary Rights or Seller Products, or (c) the validity, enforceability or claim construction of any Patents forming part of the Assets or any Seller Proprietary Rights. 

                        (iii)               Neither the Parent nor Seller is subject to any proceeding or outstanding decree, order, judgment or stipulation restricting the use, transfer or licensing of any Seller Proprietary Rights by the Parent or Seller, the use, manufacture, transfer, sale or licensing of any Seller Product by the Parent or Seller, or which might affect the validity, use or enforceability of any Seller Proprietary Rights;

                        (iv)              No Seller Proprietary Rights owned by or exclusively licensed to the Parent (in each case, to the extent included in the Assets) or Seller have been infringed or misappropriated by any Person.  There is no unauthorized use, disclosure or misappropriation of any Seller Proprietary Rights included in the Assets by any Person, including without limitation any current or former officer, manager, director, stockholder, member, employee, consultant or independent contractor of the Parent or Seller.

                        (v)                All Patents and Registered Copyrights owned by the Parent (in each case, to the extent included in the Assets) or Seller and all Patents, Registered Copyrights and Registered Trademarks licensed to the Parent or Seller (in each case, to the extent included in the Assets), other than non-exclusive licenses to Off-the-Shelf Software, (A) have been duly filed or registered (as applicable) with the applicable Governmental Entity, and maintained, including the timely submission of all necessary filings and payment of fees in compliance with the legal and administrative requirements of the appropriate jurisdictions, (B) have not lapsed, expired or been abandoned and (C) no opposition proceedings have been commenced related thereto in any jurisdictions which such procedures are available.

            (e)                Except as set forth in Part 3.29(e) of the Disclosure Schedule:

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                        (i)                  All Patents in which the Parent (to the extent included in the Assets) or the Seller, has any right, title or interest have been duly filed or registered (as applicable) with the applicable Governmental Entity, and maintained, including the submission of all necessary filings and fees in compliance with the legal and administrative requirements of the appropriate Governmental Entity, and have not lapsed, expired or been abandoned;

                        (ii)                (A) all Patents owned by the Parent (to the extent included in the Assets) or Seller, all Patents for which the Parent (to the extent included in the Assets) or Seller had or has the right to prosecute and/or maintain the Patents or the right to review and/or comment on any Patent and/or correspondence with the applicable Governmental Entity related to the Patents and all Patents exclusively licensed to the Parent (to the extent included in the Assets) or Seller, in each case have been prosecuted in good faith, are subsisting and in good standing and, to the Knowledge of Parent and Seller, disclose patentable subject matter, (B) there are no inventorship challenges to any such Patents nor does there exist, to the Knowledge of Parent and Seller, any fact that could lead to any such challenge, (C) no interference has been declared or provoked relating to any such Patents nor does there exist, to the Knowledge of Parent and Seller, any fact that could lead to such interference, (D) no opposition proceedings have been commenced related to such Patents in any jurisdictions which such procedures are available nor does there exist, to the Knowledge of Parent and Seller, any fact that could lead to any such opposition, (E) to the Knowledge of Parent and Seller, all Issued Patents in the Seller Proprietary Rights are valid and enforceable nor does there exist, to the Knowledge of Parent and Seller, any fact that could lead to a finding of invalidity or unenforceability, and (F) all maintenance and annual fees have been fully and timely paid, and all fees paid, during prosecution and after issuance of any Patent have been paid in the correct entity status amounts, with respect to Issued Patents within the Seller Proprietary Rights;

                        (iii)               To the Knowledge of Parent and Seller, there is no material fact with respect to any Patent Application in which the Parent (to the extent included in the Assets) or Seller have any right, title or interest that would (i) preclude the issuance of an Issued Patent from such Patent Application (with valid claims no less broad in scope than the claims as currently pending in such Patent Application), (ii) render any Issued Patent issuing from such Patent Application invalid or unenforceable, or (iii) cause the claims included in such Patent Application to be narrowed; and

                        (iv)              No inventorship challenge, interference, or claim of invalidity or unenforceability is pending or, to the Knowledge of Parent and Seller, threatened with respect to Patents included in the Seller Proprietary Rights.

            (f)                 The conduct of the businesses of the Parent (solely with respect to the Seller or the Seller Proprietary Rights) and Seller (in each case other than the Excluded Business) as conducted prior to or on the Closing Date, including without limitation the making, using, offering for sale, selling, otherwise distributing or importing of any Seller Product does not infringe, constitute contributory infringement, inducement to infringe, misappropriation or unlawful use of Proprietary Rights of any Person, and no Person has asserted or, to the Knowledge of Parent and Seller, threatened a claim nor do there exist, to the Knowledge of Parent and Seller, any facts which could reasonably be expected to give rise to such a claim, nor has the Parent or the Seller received any notification that any Seller Product (or any Seller Proprietary Right embodied in any Seller Product) infringes, constitutes contributory infringement, inducement to infringe, misappropriation or unlawful use of Proprietary Rights of any Person.

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            (g)                To the Knowledge of Parent and Seller, other than with respect to the Trademarks listed on Part 3.29(a)(ii)(A)-2 of the Disclosure Schedule, there does not exist any fact with respect to the Trademarks included in the Seller Proprietary Rights that would (i) preclude the issuance of any Registered Trademarks from any trademark applications, or (ii) render any such Trademarks invalid or unenforceable.  To the Knowledge of Parent and Seller, there does not exist any fact with respect to any Copyrights included in the Seller Proprietary Rights that would (i) preclude the issuance of any Registered Copyright from any copyright applications, or (ii) render any such Copyrights invalid or unenforceable.

            (h)                The Parent and the Seller have taken commercially reasonable and customary measures and precautions necessary to protect and maintain the confidentiality of all Trade Secrets in which the Parent (to the extent included in the Assets) and Seller have any right, title or interest and otherwise to maintain and protect the value of all such Trade Secrets.  Without limiting the generality of the foregoing, except as set forth in Part 3.29(h) of the Disclosure Schedule:

                        (i)                  All current and former employees of the Seller, as well as any current and former employees of the Parent who are or were involved in, or who have contributed to, the creation or development of any Seller Proprietary Rights or any Seller Product, have executed and delivered to the Parent or the Seller, as applicable, a written agreement regarding the protection of proprietary information and the irrevocable assignment to the Parent or the Seller, as applicable, of any Proprietary Rights arising from services performed by such Persons, that is substantially similar to the form of Confidential Information and Invention Assignment Agreement previously delivered by the Seller to Purchaser.  No such current employee of Parent or Seller and, to the Knowledge of Parent and Seller, no such former employee of Parent or Seller, has identified and excluded works or inventions made prior to his or her employment with the Parent or Seller, as applicable, from his or her assignment of inventions pursuant to such employee's Confidential Information and Invention Assignment Agreement, or other similar agreement, entered into with Parent or Seller, as applicable. To the Knowledge of Parent and Seller, no such current or former employee of Seller is in violation of any term of any such agreement;

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                        (ii)                All current and former consultants and independent contractors to Seller, as well as any current and former consultants and independent contractors of the Parent, who are or were involved in, or who have contributed to, the creation or development of any Seller Proprietary Rights or any Seller Product have executed and delivered to the Parent or the Seller, as applicable, a written agreement regarding the protection of proprietary information and the irrevocable assignment to the Parent or the Seller, as applicable, of any Proprietary Rights arising from services performed by such Persons, that is substantially similar to the form of Consultant Confidential Information and Invention Assignment Agreement previously delivered by the Seller to the Purchaser.  No such current consultant or independent contractor of Parent or Seller and, to the Knowledge of Parent and Seller, no such former consultant or independent contractor of Parent or Seller, has identified and excluded works or inventions made prior to his or her service with the Parent or Seller, as applicable, from his or her assignment of inventions pursuant to such consultant or independent contractor's Confidential Information and Invention Assignment Agreement, or other similar agreement, entered into with Parent or Seller, as applicable.  Part 3.29(h)(ii) of the Disclosure Schedule sets forth a list of consultants and independent contractors used by the Parent or the Seller in connection with the conception, reduction to practice, creation, derivation, development, or making of any Seller Proprietary Rights or any tangible embodiments thereof.  To the Knowledge of Parent and Seller, no current or former consultant or independent contractor of Seller is in violation of any term of any such agreement;

                        (iii)               Except as disclosed as required under Section 3.29(c)(i) above and except for disclosures made in the ordinary course of business under the confidentiality and nondisclosure agreements listed in Section 3.29(h)(iii) of the Disclosure Schedule, neither the Parent nor the Seller has disclosed or delivered to any Person, or permitted the disclosure or delivery to any escrow agent or other Person, of any Seller Source Code.  No event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any Seller Source Code; and

                        (iv)              Neither the Parent nor the Seller has disclosed any Trade Secrets in which the Parent (to the extent included in the Assets) or Seller has (or purports to have) any right, title or interest (or any tangible embodiment thereof) to any Person without having the recipient thereof execute a written agreement regarding the non-disclosure and non-use thereof.

                        (v)                Except with respect to demonstration or trial copies, no product, system, program or software module designed, developed, distributed, licensed or otherwise made available by the Parent (to the extent included in the Assets) or the Seller to any Person, including without limitation any Seller Product, contains any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus" or other software routines or hardware components installed by Parent or Seller or, to the Knowledge of Parent and Seller, any other Person, which is designed to permit unauthorized access or to disable or erase software, hardware or data without the consent of the user.

            (i)                  Reserved.   

            (j)                 Except as set forth in Part 3.29(j) of the Disclosure Schedule, each Seller Product designed, developed, manufactured, assembled, sold, installed, repaired, licensed or otherwise made available by the Parent or the Seller to any Person:

                        (i)                  conformed and complied in all material respects with the terms and requirements of any applicable warranty, the agreement related to such Seller Products and, to the Knowledge of Seller and Parent, with all applicable legal requirements; and

                        (ii)                was free of any bug, virus, design defect or other defect or deficiency at the time it was sold or otherwise made available, other than any immaterial bug or similar defect that would not adversely affect in any material respect such Seller Product or other asset, product or system (or the operation or performance of either of the foregoing).

                        (iii)               the Disclosure Schedule contains an accurate and complete copy of the most recent "bug list" with respect to each product, system, program or software module of each of the Seller Products.

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            (k)               Neither Parent nor Seller have provided any installation services, programming services, repair services, maintenance services, support services, training services, upgrade services or other services in each case with respect to the Seller Products.

            (l)                  No customer or other Person has asserted or, to the Knowledge of Parent and Seller, threatened to assert any claim against the Parent (solely with respect to the Seller Products) or the Seller (i) under or based upon any warranty provided by or on behalf of the Parent (solely with respect to the Seller Products) or the Seller, or (ii) under or based upon any other warranty relating to any Seller Product.

            (m)              Neither the Parent nor the Seller is or has ever been a member or promoter of, or a contributor to or made any commitments or agreements regarding any patent pool, industry standards body, standard setting organization, industry or other trade association or similar organization, in each case that could or does require or obligate the Parent or the Seller to grant or offer to any other Person any license or right to any Proprietary Rights, including without limitation any future Proprietary Rights developed, conceived, made or reduced to practice by the Parent or the Seller or any Affiliate thereof after the date of this Agreement.

            (n)                No funding, facilities or personnel of any Governmental Entity were used by Seller, directly or indirectly, to develop or create, in whole or in part, any Seller Proprietary Rights or any Seller Product.

            (o)               Except for credit terms extended in the ordinary course of business, neither the Parent nor Seller have agreed to provide vendor financing with respect to the sale of any Seller Products.

            (p)               To the