AGREEMENT AND PLAN OF MERGER BY AND AMONG ADVENT SOFTWARE, INC., BIRDIE ACQUISITION LLC, BLACK DIAMOND PERFORMANCE REPORTING, LLC, AND, WITH RESPECT TO ARTICLE VII, ARTICLE VIII AND ARTICLE IX ONLY, REED COLLEY, AS THE SECURITYHOLDERS’ REPRESENTATIVE,...

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

BY AND AMONG

ADVENT SOFTWARE, INC.,

BIRDIE ACQUISITION LLC,

BLACK DIAMOND PERFORMANCE REPORTING, LLC,

AND, WITH RESPECT TO ARTICLE VII, ARTICLE VIII AND ARTICLE IX ONLY,

▇▇▇▇ ▇▇▇▇▇▇,

AS THE SECURITYHOLDERS’ REPRESENTATIVE,

AND

U.S. BANK NATIONAL ASSOCIATION,

AS ESCROW AGENT

Dated as of May 12, 2011

TABLE OF CONTENTS

i

TABLE OF CONTENTS

(Continued)

ii

TABLE OF CONTENTS

(Continued)

iii

INDEX OF EXHIBITS

iv

INDEX OF DEFINED TERMS

v

INDEX OF DEFINED TERMS

(Continued)

vi

INDEX OF DEFINED TERMS

(Continued)

vii

INDEX OF DEFINED TERMS

(Continued)

viii

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of May 12, 2011 by and among Advent Software, Inc., a Delaware corporation (“Parent”), Birdie Acquisition LLC, a Delaware limited liability company and wholly owned subsidiary of Parent (“Merger Sub”), Black Diamond Performance Reporting, LLC, a Florida limited liability company (the “Company”), and, with respect to Article VII, Article VIII and Article IX only, ▇▇▇▇ ▇▇▇▇▇▇, as exclusive representative of the Indemnifying Parties (as defined herein) (the “Securityholders’ Representative”), and U.S. Bank National Association, as escrow agent (the “Escrow Agent”).

RECITALS

A.                                   The Boards of Directors or Managers of each of Parent, Merger Sub and the Company believe that it is advisable and in the best interests of each corporation or limited liability company, as the case may be, and its respective stockholders and members that Parent acquire the Company through the statutory merger of the Company with and into the Merger Sub (the “Merger”) and, in furtherance thereof, have approved this Agreement and the Merger.

B.                                     Pursuant to the Merger, among other things, and subject to the terms and conditions of this Agreement, all of the outstanding Company Interests and Company Options shall be converted into the right to receive the consideration set forth herein.

C.                                     A portion of the consideration otherwise payable by Parent in connection with the Merger shall be deposited by Parent into an escrow account as partial security for the indemnification obligations set forth in this Agreement.

D.                                    The Company, on the one hand, and Parent and Merger Sub, on the other hand, desire to make certain representations, warranties, covenants and other agreements in connection with the transactions contemplated hereby.

E.                                      As a material inducement to Parent and Merger Sub to enter into this Agreement, concurrent with the execution and delivery of this Agreement, each of the Key Future Employees shall have executed (i) an “at-will” employment letter, in substantially the form attached hereto as Exhibit A (each such agreement, an “Employment Agreement”), with Parent to be effective as of the Effective Time and (ii) a non-competition and non-solicitation agreement in substantially the form attached hereto as Exhibit B (each such agreement, a “Non-Competition Agreement”) with Parent to be effective as of the Effective Time.

F.                                      Concurrent with the execution and delivery of this Agreement, and as a condition and inducement to the willingness of Parent and Merger Sub to enter into this Agreement, the Company Support Members have entered into a Voting Agreement dated as of the date hereof and in the form attached hereto as Exhibit C (the “Voting Agreement”) pursuant to which each such Company Support Member has agreed to vote in favor of approval of this Agreement and the transactions contemplated hereby and to take certain other actions in furtherance of the consummation of the Merger upon the terms and subject to the conditions set forth in the Voting Agreement.

G.                                     Promptly after the execution and delivery of this Agreement, but in no event later than twenty-four hours thereafter, and as a material inducement to Parent and Merger Sub to enter into this Agreement, the Company shall obtain and deliver to Parent a true, correct and complete copy of an action by written consent of members, evidencing the approval of this Agreement and the transactions contemplated hereby, in the form attached hereto as Exhibit D-1 (the “Member Written Consent”),

signed by each of the persons and entities identified on Exhibit D-2 (the “Company Support Members”).

NOW, THEREFORE, in consideration of the mutual agreements, covenants and other premises set forth herein, the mutual benefits to be gained by the performance thereof, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, the parties hereby agree as follows:

ARTICLE I

THE MERGER

1.1                                 The Merger.  At the Effective Time and subject to and upon the terms and conditions of this Agreement and the applicable provisions of the Florida Statutes (“Florida Law”) and the Delaware Limited Liability Company Act (“Delaware Law”), the Company shall be merged with and into Merger Sub, the separate corporate existence of the Company shall cease, and Merger Sub shall continue as the surviving company and as a wholly owned subsidiary of Parent.  The surviving company after the Merger is sometimes referred to hereinafter as the “Surviving Company.”

1.2                                 Effective Time.  Unless this Agreement is earlier terminated pursuant to Section 8.1, the closing of the Merger (the “Closing”) will take place on the first day of the month following the satisfaction or waiver of the conditions set forth in Article VI (except for those conditions to be satisfied at and as of the Closing, but subject to the satisfaction of those conditions) at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, unless another time or place is mutually agreed upon in writing by Parent and the Company.  The date upon which the Closing actually occurs shall be referred to herein as the “Closing Date.”  On the Closing Date, the parties hereto shall cause the Merger to be consummated by filing a certificate of merger (or like instrument) in substantially the form attached hereto as Exhibit F (the “Certificate of Merger”) with the Secretary of State of the State of Florida in accordance with the applicable provisions of Florida Law and with the Secretary of State of the State of Delaware in accordance with the applicable provisions of Delaware Law (the later of the time of acceptance by the Secretary of State of the State of Florida or by the Secretary of State of the State of Delaware of the Certificate of Merger shall be referred to herein as the “Effective Time”).

1.3                                 Effect of the Merger.  At the Effective Time, the effect of the Merger shall be as set forth in this Agreement and as provided in the applicable provisions of Delaware Law and Florida Law.  Without limiting the generality of the foregoing, at the Effective Time, except as otherwise agreed to pursuant to the terms of this Agreement, all of the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Company, and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Company.

1.4                                 Certificate of Formation and Limited Liability Company Agreement.

(a)                                  Certificate of Formation.  Unless otherwise determined by Parent prior to the Effective Time, the certificate of formation of the Merger Sub as in effect immediately prior to the Effective Time shall be the certificate of formation of the Surviving Company, until thereafter amended in accordance with Delaware Law and as provided in such certificate of formation.

(b)                                 Limited Liability Company Agreement.  Unless otherwise determined by Parent prior to the Effective Time, the limited liability company agreement of the Surviving Entity at the Effective Time shall read in its entirety as set forth on Exhibit G.

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1.5                                 Managers and Officers.

(a)                                  Managers of the Surviving Company.  Unless otherwise determined by Parent prior to the Effective Time, the managers of Merger Sub immediately prior to the Effective Time shall be the managers of the Surviving Company immediately after the Effective Time, each to hold the office of a manager of the Surviving Company in accordance with the provisions of Delaware Law and the certificate of formation and limited liability company agreement of the Surviving Company until their successors are duly elected and qualified, or until their earlier death, resignation or removal.

(b)                                 Officers of the Surviving Company.  Unless otherwise determined by Parent prior to the Effective Time, the officers of Merger Sub immediately prior to the Effective Time shall be the officers of the Surviving Company immediately after the Effective Time, each to hold office in accordance with the provisions of the limited liability company agreement of the Surviving Company.

1.6                                 Effect of Merger on the Capital Stock of Merger Sub and Interests in the Company.

(a)                                  Definitions.  For all purposes of this Agreement, the following terms shall have the following respective meanings:

(i)                                                       “2011 Bonus Plan” shall mean the Company’s 2011 Bonus Plan, as in effect as of the date hereof.

(ii)                                                    “Action” shall mean any private or governmental action, suit, claim, charge, cause of action or suit (whether in contract or tort or otherwise), litigation (whether at law or in equity, whether civil or criminal), assessment, arbitration, investigation, audit, hearing, complaint, demand or other proceeding to, from, by or before any arbitrator, or Governmental Entity.

(iii)                                                 “Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, directly or indirectly controlled by, or under direct or indirect common control with, such Person, or if such Person is a partnership, any general partner of such Person or a Person controlling any such general partner.  For purposes of this definition, “control” (including “controlled by” and “under common control with”) shall mean the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or partnership or other ownership interests, by contract or otherwise.

(iv)                                                “Anti-Corruption and Anti-Bribery Laws” shall mean the Foreign Corrupt Practices Act of 1977, as amended, any rules or regulations thereunder, or any applicable United States or foreign anti-corruption or anti-bribery laws or regulations.

(v)                                                   “Bonus Plan Employee” shall mean an Employee entitled to receive, immediately before the Effective Date, payments under the 2011 Bonus Plan.

(vi)                                                “Bonus Plan Escrow Amount” shall mean, with respect to each Bonus Plan Employee, other than the Bonus Plan Employees set forth on Schedule 1.6(a)(vi), their Pro-Rata Portion of the Escrow Fund and the Expense Escrow Account, calculated in accordance with the provisions of Sections 1.6(a)(l)(aa) and (bb).

(vii)                                             “Business Day” shall mean each day that is not a Saturday, Sunday or other day on which Parent is closed for business or banking institutions located in San Francisco, California or Jacksonville, Florida are authorized or obligated by Law to close.

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(viii)                                          “Change in Control Payments” shall mean (A) any severance, retention, bonus or other similar payment to any Person under any Contract or the Plan, other than the 2011 Bonus Plan, (B) any cancellation or forgiveness of Indebtedness, or (C) any increase of any benefits otherwise payable by the Company in each case of the foregoing clauses (A) and (B), inclusive, that are payable or become effective as a result of the execution and delivery of this Agreement by the Company or the consummation of any of the transactions contemplated hereby.

(ix)                                                  “Code” shall mean the Internal Revenue Code of 1986, as amended.

(x)                                                     “Company Class A Preferred Units” shall mean the Class A Preferred Units of the Company.

(xi)                                                  “Company Class B Preferred Units” shall mean the Class B Preferred Units of the Company.

(xii)                                               “Company Class C Units” shall mean the Class C Units of the Company.

(xiii)                                            “Company Common Units” shall mean the Common Units of the Company.

(xiv)                                           “Company Material Adverse Effect” shall mean any change, effect, development, circumstance, change of facts, condition, occurrence or event (each, an “Effect”) that, individually or in the aggregate taken with all other Effects, (A) is or could reasonably be expected to be materially adverse to the capitalization, business, operations, assets (whether tangible or intangible), liabilities, financial condition or results of operations of the Company, or (B) that would reasonably be expected to prevent or materially impede, interfere with, hinder or delay the consummation by the Company of the transactions contemplated by this Agreement; provided, however, that in no event shall any of the following Effects, alone or in combination with any other Effects, be deemed to constitute, nor shall any of the following be taken into account in determining whether there has or will be, a Company Material Adverse Effect: (1) general economic, market or political conditions (including acts of terrorism or war) provided that such conditions do not affect the Company disproportionately; (2) any changes (after the date hereof) in GAAP or applicable Law; (3) any occurrence or occurrences relating to the industry in which the Company operates, provided that such conditions do not affect the Company disproportionately; or (4) any adverse effect (including any loss of or adverse change in the relationship of the Company with its customers, partners or similar relationships, or loss of or adverse change in any employee relationship but expressly excluding data provider suppliers) directly resulting from the public announcement or pendency of the transactions contemplated by this Agreement.

(xv)                                              “Company Options” shall mean all issued and outstanding options (including Company Warrants and commitments to grant options) to purchase or otherwise acquire Company Units (whether or not vested) held by any Employee, Consultant, Manager or advisor of the Company.

(xvi)                                           “Company Small-lot Options” shall mean the Company Options held by the Employees set forth on Schedule 1.6(a)(xvi).

(xvii)                                        “Company Units” shall mean the Company Common Units, the Company Class A Preferred Units, the Company Class B Preferred Units and the Company Class C Units.

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(xviii)                                     “Company Warrants” shall mean all issued and outstanding warrants to purchase or otherwise acquire Company Class C Units under that certain Warrant Agreement dated as of December 3, 2009 by and between the Company and C. ▇▇▇▇▇ ▇▇▇▇▇▇▇.

(xix)                                             “Continuing Employee” shall mean each Employee who (A) receives and accepts an offer of at-will employment (which offer of employment is not for a transitional period ending within a specified or estimated time period after the Effective Time) from Parent or any of its subsidiaries prior to the Effective Time, and (B) is an employee of Parent or any of its subsidiaries immediately following the Effective Time.

(xx)                                                “Court” shall mean any court or arbitration tribunal of the United States, any domestic state or any foreign country, and any political subdivision or agency thereof.

(xxi)                                             “Escrow Amount” shall mean an amount of cash equal to $7,000,000.

(xxii)                                          “Estimated Transaction Expenses” shall mean the amount of Transaction Expenses (both paid and unpaid) incurred or expected to be incurred by the Company or any other Person (for which the Company may pay or reimburse others or may otherwise be obligated to pay or reimburse others or may be or may become liable) as of the Closing Date as estimated by the Company in good faith and based on reasonable assumptions, as set forth on the Statement of Expenses.

(xxiii)                                       “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

(xxiv)                                      “Expense Escrow Amount” shall mean the amount of cash equal to $150,000.

(xxv)                                         “Export and Import Approvals” shall mean all export licenses, license exceptions, consents, notices, waivers, approvals, Orders, authorizations, registrations, declarations and filings, from or with any Governmental Entity, that are required for compliance with Export and Import Control Laws.

(xxvi)                                      “Export and Import Control Laws” shall mean any U.S. or applicable non-U.S. Law, regulation, or Order governing (A) imports, exports, reexports, or transfers of products, services, software, or technologies from or to the United States or another country; (B) any release of technology or software in any foreign country or to any foreign person (anyone other than a citizen or lawful permanent resident of the United States, or a protected individual as defined by 8 U.S.C. § 1324b(a)(3)) located in the United States or abroad; (C) economic sanctions or embargoes; or (D) compliance with unsanctioned foreign boycotts.

(xxvii)                                   “Fully Diluted Units” shall mean a number equal to (without duplication) (A) the aggregate number of Company Common Units, Company Class A Preferred Units, Company Class B Preferred Units and Company Class C Units that are outstanding as of immediately prior to the Effective Time, plus (B) the maximum aggregate number of Company Class C Units issuable upon full exercise of all Company Options, and all other securities that are convertible into, or exercisable or exchangeable for, Company Class C Units, in each case calculated on a fully diluted basis, that are outstanding as of immediately prior to the Effective Time.

(xxviii)                                “GAAP” shall mean United States generally accepted accounting principles consistently applied.

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(xxix)                                        “Government Contract” shall mean (A) any Contract bid on, solicited, or entered into by or on behalf of the Company with a Governmental Entity, or (B) any Contract or subcontract bid on, solicited, or entered into by or on behalf of the Company, which, by its terms, relates to a Contract to which a Governmental Entity is a party.

(xxx)                                           “Governmental Entity” shall mean any government, any governmental or regulatory entity or body, department, commission, board, agency or instrumentality, and any Court, tribunal or judicial body, in each case whether federal, state, county, provincial, and whether local or foreign.

(xxxi)                                        “Governmental Official” shall mean any person elected to a position in, appointed to a position with or otherwise employed by any transnational, domestic or foreign, federal, state or local, Governmental Entity, department, Court, agency or official, including any political subdivision thereof (including public universities and hospitals).

(xxxii)                                     “HSR Act” shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

(xxxiii)                                  “Indebtedness” shall mean all liabilities and obligations, including any applicable penalties (including with respect to any prepayment thereof), interest and premiums, without duplication, (A) for borrowed money; (B) evidenced by notes, bonds, debentures, letters of credit or similar instruments; (C) for the deferred purchase price of goods or services (other than trade payables or accruals incurred in the ordinary course of business); (D) for all net obligations under interest rate swap agreements, any interest rate cap agreement, any interest rate collar agreement or other similar agreement or arrangement designed to protect any Person against fluctuations in interest rates; (E) under capital leases; or (F) in the nature of guarantees of the obligations described in clauses (A) through and (E), inclusive, above of any other Person.

(xxxiv)                                 “Interest” in the Company shall mean the entire ownership interest of a Member or a Unitholder in the Company.

(xxxv)                                    “Key Future Employees” shall mean the Employees identified on Schedule 1.6(a)(xxxv) hereto.

(xxxvi)                                 “Knowledge” shall mean the knowledge of the persons identified on Schedule 1.6(a)(xxxvi), and, except in the case of non-Employee Managers, the knowledge that such persons would be reasonably expected to have if such persons had, in light of the facts and circumstances, made reasonable inquiry of all relevant Employees and Consultants.

(xxxvii)                              “Law” shall mean any federal, state, local, non-U.S. or other law (statutory, common or otherwise), statute, constitution, treaty, convention, ordinance, equitable principle, code, edict, decree, rule, Order, requirement, regulation, executive order or other similar authority issued, enacted, adopted, promulgated, implemented, applied or otherwise put into legal effect by or under the authority of any Governmental Entity, each as amended and now in effect.

(xxxviii)                           “Legal Proceeding” shall mean any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Entity or any arbitrator or arbitration panel.

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(xxxix)                                   “Liabilities” shall mean all Indebtedness, liabilities, obligations and Taxes, whether accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, asserted or unasserted, known or unknown, including those arising under any Law, Action or Order and those arising under any Contract, excluding in all cases the performance obligations thereunder.

(xl)                                                  “Lien” shall mean any lien, pledge, charge, claim, mortgage, restriction on transfer, security interest or other encumbrance of any sort.

(xli)                                               “Member” shall mean any Person admitted to the Company as a member pursuant to the terms and conditions of the Operating Agreement.

(xlii)                                            “Merger Consideration” shall mean an amount of cash equal to $73,000,000 minus the sum of (1) the amount of all Change of Control Payments in excess of (A) $500,000 minus (B) Transaction Payroll Taxes, if any, (2) the amount of Transaction Expenses set forth in the Statement of Expenses and (3) the amount of the 2011 Bonus Plan.

(xliii)                                         “Optionholder” shall mean any holder of any Company Options immediately prior to the Effective Time.

(xliv)                                        “Order” shall mean any order, ruling, decision, verdict, decree, writ, subpoena, mandate, precept, command, directive, approval, award, judgment, injunction or other similar determination or finding issued, granted or made by any Governmental Entity.

(xlv)                                           “Per Unit Consideration” shall mean the amount obtained by dividing (A) the Merger Consideration by (B) the Fully Diluted Units.

(xlvi)                                        Person shall mean an individual or entity, including a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a Governmental Entity (or any department, agency, or political subdivision thereof).

(xlvii)                                     “Plan” shall mean the Company’s 2007 Unit Option Plan dated January 1, 2007.

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

(xlix)                                          “Pre-Closing Taxes” shall mean all Taxes of the Company attributable to a Pre-Closing Tax Period, including Transaction Payroll Taxes.  In the case of any taxable period that includes but does not end on the Closing Date (each, a “Straddle Period”), the Taxes of the Company other than Property Taxes so attributable to the Pre-Closing Tax Period shall be computed as if the Company had sold its assets to Parent for cash on the Closing Date and liquidated immediately thereafter and the Property Taxes imposed upon the Company allocable to the Pre-Closing Tax Period shall be equal to the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the number of days in the Straddle Period.

(l)                                                       “Pro Rata Portion” shall mean, with respect to each Unitholder (other than a Unitholder holding Dissenting Units who does not effectively withdraw or lose such Unitholder’s dissenter’s rights as contemplated by Section 1.7(b)) or Optionholder, an amount equal to the quotient

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obtained by dividing (A) the cash consideration payable pursuant to Sections 1.6(b) and 1.6(c)(i) to such Unitholder or Optionholder (including any amounts deposited into the Escrow Fund and the Expense Escrow Account pursuant to this Agreement), by (B) the aggregate cash consideration payable pursuant to Sections 1.6(b) and 1.6(c)(i) to all Unitholders (other than any Unitholders holding Dissenting Units who do not effectively withdraw or lose such Unitholders’ dissenters’ rights as contemplated by Section 1.7(b)) and Optionholders (including any amounts deposited into the Escrow Fund and the Expense Escrow Account pursuant to this Agreement); provided that, notwithstanding anything contained in this Section 1.6(a)(l) to the contrary, for purposes of determining the amount deposited in the Escrow Fund and the Expense Escrow Account, the calculation of the Pro Rata Portion shall (aa) exclude from the amount included in Subsection (B) immediately above, the aggregate amount of the Small-lot Optionholders’ Payments, and (bb) include in the amount included in Subsection (B) immediately above, the aggregate cash consideration payable to the Bonus Plan Employees pursuant to Section 5.14(b) (including any amounts deposited into the Escrow Fund  and the Expense Escrow Account pursuant to this Agreement).

(li)                                                    “Property Taxes” shall mean any real, personal or intangible property Taxes.

(lii)                                                 “Related Agreements” shall mean the Nondisclosure Agreement and Certificate of Merger.

(liii)                                              “Requisite Member Vote” shall mean the affirmative vote of the holders of at least 95% of the outstanding Company Common Units, Class A Preferred Units and Class B Preferred Units, voting together as a single class.

(liv)                                             “Securityholder” shall mean any holder of Company Units, Company Options or other securities that are convertible into or exercisable or exchangeable for, securities of the Company immediately prior to the Effective Time.

(lv)                                                “Small-lot Optionholders” shall mean any holder of Company Small-lot Options immediately prior to the Effective Time.

(lvi)                                             “Small-lot Optionholders’ Payment” shall mean an amount payable to each Small-lot Optionholder as an Optionholder pursuant to the terms of this Agreement.

(lvii)                                          “Total Outstanding Voting Units” shall mean a number equal to the aggregate number of Company Common Units, Company Class A Preferred Units and Company Class B Preferred Units that are outstanding as of immediately prior to the Effective Time.

(lviii)                                       “Transaction Expenses” shall mean (i) all fees, costs and expenses, whether or not paid, including any and all legal, accounting, consulting, investment banking, financial advisory, and brokerage fees, costs and expenses, incurred by the Company, or any other Person (for which the Company may pay or reimburse others or may otherwise be obligated to pay or reimburse others or may be or may become liable) in connection with this Agreement, the Merger or any of the transactions contemplated hereby and (ii) any and all fees, costs and expenses relating to or arising from obtaining or maintaining any tail or runoff insurance policy for the Company’s managers’ and officers’ insurance.

(lix)                                               “Transaction Payroll Taxes” shall mean the employer portion of any employment or payroll Taxes attributable to or imposed on any payment in connection with the

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transactions contemplated by this Agreement, including but not limited to the Change in Control Payments and the cash-out of Company Options, whether payable by Parent or the Company.

(lx)                                                  “Unitholder” shall mean any holder of any Company Units immediately prior to the Effective Time.

(b)                                 Effect on Company Units.  At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or the holders of Company Units, each Company Unit (excluding, for the avoidance of doubt, Dissenting Units, which shall be treated as provided for in Section 1.7, and Company Options, which shall be treated as provided for in Section 1.6(c)) issued and outstanding immediately prior to the Effective Time, upon the terms and subject to the conditions set forth in this Section 1.6 and throughout this Agreement, including the escrow provisions set forth in Article VII, will be cancelled and extinguished and will be converted automatically into the right to receive, upon submission of the Exchange Documents in the manner provided in Section 1.8, the Per Unit Consideration (it being understood that for purposes of calculating the amount issuable to each Unitholder pursuant to this Section 1.6(b), all Company Units held by each Unitholder shall be aggregated).

(c)                                  Effect on Company Options.

(i)                                                       Effect on Company Options.  Parent shall not assume any Company Options, and at the Effective Time each Company Option outstanding immediately prior to the Effective Time shall become immediately vested and shall, without any action on the part of Parent, Merger Sub, the Company or the holder thereof, be cancelled and converted into and shall become a right to receive an amount in cash, without interest, equal to (A) the excess, if any, of (x) the amount of cash equal to the Per Unit Consideration over (y) the exercise price per unit attributable to such Company Option, multiplied by (B) the total number of Company Class C Units issuable upon exercise in full of such Company Option.  The payment of any amounts pursuant to this Section 1.6(c)(i) will be subject to withholdings for all applicable Taxes and, except for the Company Small-lot Options, will be subject to the escrow provisions set forth in Article VII.

(ii)                                                    Necessary Actions.  Prior to the Effective Time, and subject to the review and approval of Parent, the Company shall take all actions necessary to effect the transactions anticipated by this Section 1.6(c) under all Company Option agreements and all agreements related to Company Class C Units, including, as applicable, adopting all resolutions, delivering all required notices, and taking any other actions that are necessary or appropriate to effectuate this Section 1.6(c), including having obtained the agreement by the Optionholders, other than the Small-lot Optionholders, to the escrow and indemnification obligations of the Optionholder set forth in Article VII, the deposit of the Escrow Amount into the Escrow Fund as contemplated by Section 1.8(b), to the appointment of ▇▇▇▇ ▇▇▇▇▇▇ as Securityholders’ Representative under and as defined in this Agreement, and to the deposit of the Expense Escrow Amount into the Expense Escrow Account as contemplated by Section 7.7(c).  Any notices, consents or other communications to holders of Company Options will be subject to the review and approval of Parent, which shall not be unreasonably withheld, conditioned or delayed, and are referred to herein collectively as the “Option Communications.”

(d)                                 Withholding Taxes.  The Company, Parent, the Surviving Company, the Paying Agent and the Escrow Agent, shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any Person such amounts as may be required to be deducted or withheld therefrom under any provision of federal, state, local or foreign Tax Law or under any applicable Law, and to request and be provided any necessary Tax forms, including a valid IRS Form W-9 or the appropriate version of Form W-8, as applicable, and any similar information.  To the extent

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that any payment to any Person is not reduced by such deductions or withholdings, such Person shall indemnify Parent and its Affiliates (including, after the Effective Time, the Surviving Company) for any amounts imposed by and required to be paid over to any Taxing Authority with respect to any such Taxes, together with any costs and expenses relating thereto (including reasonable attorneys’ fees and costs of investigation).  To the extent that such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.

(e)                                  Effect on Capital Stock of Merger Sub.  Each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one validly issued, fully paid and nonassessable share of common stock of the Surviving Company.  Each stock certificate of Merger Sub evidencing ownership of any such shares shall continue to evidence ownership of such shares of common stock of the Surviving Company.

1.7                                 Dissenting Units.

(a)                                  Notwithstanding any other provisions of this Agreement to the contrary, any Common Units, Class A Preferred Units or Class B Preferred Units held by a Member who has not effectively withdrawn or lost such Member’s appraisal, dissenters’ or similar rights with respect to such units under Florida Law (collectively, the “Dissenting Units”) shall not be converted into or represent a right to receive the applicable portion of the Merger Consideration set forth in Section 1.6, but the holder thereof shall only be entitled to such rights as are provided by Florida Law.

(b)                                 Notwithstanding the provisions of Section 1.7(a), if any holder of Dissenting Units shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal or dissenters’ rights under Florida Law, then, as of the later of the Effective Time and the occurrence of such event, such holder’s units shall automatically be converted into and represent only the right to receive the applicable portion of the Merger Consideration set forth in Section 1.6, without interest thereon, and subject to the provisions of Section 7.5, upon submission of the Exchange Documents.

(c)                                  The Company shall comply with the applicable requirements under Sections 608.4351-608.43595 of the Florida Limited Liability Company Act (the “Florida LLC Act”) under Florida Law.  The Company shall give Parent (i) prompt notice of any written demand for appraisal received by the Company pursuant to the applicable provisions of the Florida LLC Act and (ii) the opportunity to participate in all negotiations and proceedings with respect to such demands.  The Company shall not, except with the prior written consent of Parent, make any payment with respect to any such demands or offer to settle or settle any such demands.  Notwithstanding the foregoing, to the extent that Parent, the Surviving Company or the Company (A) makes any payment or payments in respect of any Dissenting Units in excess of the consideration that otherwise would have been payable in respect of such units in accordance with this Agreement, or (B) incurs any Losses (including attorneys’ and consultants’ fees, costs and expenses and including any such fees, costs and expenses incurred in connection with investigating, defending against or settling any action or proceeding) in respect of any Dissenting Units (excluding payments for such units) ((A) and (B) together, “Dissenting Unit Payments”), Parent shall be entitled to recover under the terms of Article VII the amount of such Dissenting Unit Payments.

1.8                                 Surrender of Company Units.

(a)                                  Paying Agent.  U.S. Bank National Association shall serve as the paying agent (the “Paying Agent”) for the Merger.

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(b)                                 Parent to Provide Consideration.  On the Closing Date, Parent shall make available to the Paying Agent for exchange in accordance with this Article I that portion of the Merger Consideration payable pursuant to Section 1.6; provided, however, that Parent shall deposit into the Escrow Fund and the Expense Escrow Account, amounts of cash equal to the Escrow Amount and the Expense Escrow Amount, respectively, out of the aggregate Merger Consideration otherwise payable to the Unitholders and Optionholders pursuant to Section 1.6.  Parent shall be deemed to have deposited each Unitholder’s and Optionholder’s Pro Rata Portion of the Escrow Amount and the Expense Escrow Amount into the Escrow Fund and the Expense Escrow Account, respectively, at such time, rounded to the nearest cent.

(c)                                  Exchange Procedures.

(i)                                                       The parties hereby acknowledge that the Company Units are not certificated.  As soon as practicable, but in no event more than three Business Days following the Closing Date, Parent or the Paying Agent shall mail a letter of transmittal in Parent’s standard form to each Unitholder at the address set forth opposite each Unitholder’s name on the Spreadsheet.  After receipt of such letter of transmittal and any other documents that Parent or the Paying Agent may reasonably require in order to effect the exchange of Company Units for the payments set forth in Section 1.6(b) (the “Exchange Documents”), the Unitholders will submit duly completed and validly executed Exchange Documents to the Paying Agent.  Parent shall submit a copy of the proposed Exchange Documents to the Company for review at least three Business Days prior to the Closing Date.  Upon submission of such Exchange Documents, duly completed and validly executed in accordance with the instructions thereto to the Paying Agent, or such other agent or agents as may be appointed by Parent, the applicable Unitholder shall be entitled to receive from the Paying Agent in exchange therefor the cash payment, without interest, to which such holder is entitled pursuant to Section 1.6 (less the Pro Rata Portion of the cash to be deposited in the Escrow Fund  and the Expense Escrow Account pursuant to Section 1.8(b) and Article VII).  No portion of the Merger Consideration will be paid with respect to Company Units until the holder of record of such units shall submit such Exchange Documents pursuant hereto.

(ii)                                                    On or prior to the Closing Date, Parent shall make available to the Company or the Surviving Company, as applicable, for exchange in accordance with this Article I that portion of the Merger Consideration payable pursuant to Section 1.6 in exchange for outstanding Company Options.  Promptly following the Closing Date, and upon receipt by the Surviving Company or Parent, as applicable, of Option Communications, each holder delivering such Option Communications shall be entitled to receive from the Surviving Company or Parent, as applicable, the cash payment, without interest, to which such holder is entitled pursuant to Section 1.6 (less the Pro Rata Portion of the cash to be deposited in the Escrow Fund and the Expense Escrow Account pursuant to Section 1.8(b) and Article VII).  Notwithstanding anything to the contrary in this Agreement, Parent shall be entitled to withhold or cause to be withheld that portion of the Merger Consideration payable in respect of Company Options and Parent (or the Surviving Company) shall distribute, or cause to be distributed, such portion of the Merger Consideration (less the Pro Rata Portion of the cash to be deposited in the Escrow Fund and the Expense Escrow Account pursuant to Section 1.8(b) and Article VII) to the holders of Company Options (including by means of a payroll processor) upon receipt by Parent (or the Surviving Company) of the Option Communications (in each case, less any applicable Tax withholding).

(d)                                 No Liability.  Notwithstanding anything to the contrary in this Section 1.8, neither the Paying Agent, the Surviving Company nor any party hereto shall be liable to a holder of Company Units for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar Law.

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(e)                                  Paying Agent to Return Undistributed Consideration.  All funds held from time to time by the Paying Agent pursuant to this Section 1.8 shall be invested by the Paying Agent as directed by Parent pending payment thereof by the Paying Agent to the Unitholders in accordance with the terms hereof.  All interest and other earnings from any investment of funds held from time to time by the Paying Agent pursuant to this Section 1.8 shall be the sole and exclusive property of Parent, and no part of such interest or other earnings shall accrue to or for the benefit of any Unitholders.  At any time following the six month anniversary of the Closing Date, Parent shall be entitled to require the Paying Agent to deliver to Parent or its designated successor or assign all cash amounts that have been deposited with the Paying Agent pursuant to this Agreement, and any and all interest thereon or other income or proceeds thereof, not disbursed to the Unitholders pursuant to this Agreement, and thereafter the Unitholders shall be entitled to look only to Parent as general creditors thereof with respect to any and all cash amounts that may be payable or issuable to such Unitholders in the manner set forth in this Agreement.  No interest shall be payable for the cash amounts delivered to Parent pursuant to the provisions of this Section 1.8(e) and that are subsequently delivered to the Unitholders.

1.9                                 No Further Ownership Rights in Company Units.  The cash paid in respect of the surrender for exchange of Company Units in accordance with the terms hereof shall be deemed to constitute full satisfaction of all rights pertaining to such Company Units, and, from and after the Effective Time, there shall be no further registration of transfers on the records of the Surviving Company of Company Units that were outstanding immediately prior to the Effective Time.  If, after the Effective Time, any instruments of surrender, notices or other evidence of ownership in the Company Units are presented to the Surviving Company or the Paying Agent for any reason, they shall be cancelled and exchanged as provided in this Article I.

1.10                           Taking of Necessary Action; Further Actions.  If at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Company with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company, Parent and the Surviving Company and the officers and directors or managers of Parent and the Surviving Company are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary action, in all cases subject to the terms and conditions of this Agreement.

ARTICLE II

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby represents and warrants to Parent and Merger Sub, subject to disclosure and exceptions as is specifically set forth in the Disclosure Schedule (as defined below) (each of which disclosures and exceptions, in order to be effective, shall clearly reference the appropriate section and, if applicable, subsection of this Article II to which it relates, and each of which disclosures shall be deemed to be incorporated by reference into the representations and warranties made in the section of this Article II); provided, however, that any information disclosed under any section of the Disclosure Schedule shall be deemed disclosed and incorporated into any other section of the Disclosure Schedule where it is reasonably apparent that such disclosure, without reference to extrinsic documentation, is relevant to such other section of the Disclosure Schedule delivered by the Company to Parent concurrently with the execution of this Agreement (the “Disclosure Schedule”) dated as of the date hereof, on the date hereof and on and as of the Closing Date, as follows:

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2.1                                 Organization of the Company.

(a)                                  The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Florida.  The Company has the corporate power to own its properties and to carry on its business as currently conducted and as currently contemplated to be conducted.  The Company is duly qualified or licensed to do business and is in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (whether owned, leased or licensed) or the nature of its business make such qualifications necessary, except where the failure to so qualify would not be material to the Company.  The Company has made available to Parent a true, correct and complete copy of its Articles of Organization and limited liability company operating agreement, as amended to date (the “Operating Agreement”) (collectively, the “Charter Documents”).  The Board of Managers of the Company has not approved or proposed any amendment to any of the Charter Documents.

(b)                                 Section 2.1(b) of the Disclosure Schedule lists the managers and officers of the Company as of the date hereof.  The operations now being conducted by the Company are not now, and have never been, conducted by the Company under any other corporate name.

(c)                                  Section 2.1(c) of the Disclosure Schedule lists every state or foreign jurisdiction in which the Company has Employees or facilities or otherwise conducts its business.

2.2                                 Company Capital Structure.

(a)                                  The Company Units are owned by the Persons and in the amounts set forth on Section 2.2(a) of the Disclosure Schedule, which further sets forth, for each such Person, (A) such Person’s address; (B) the number of Company Units held by such Person (including whether such Company Units are Company Common Units, Company Class A Preferred Units, Company Class B Preferred Units or Company Class C Units); (C) the liquidation preference applicable to each Company Class A Preferred Unit and Company Class B Preferred Unit held by such Person, if any; (D) the date of acquisition of such units, (E) the Pro Rata Portion applicable to such Person; (F) the amount of cash to be paid to each holder pursuant to Section 1.6; and (G) the amount of cash, if any, to be paid by or on behalf of such Person in settlement of Tax withholding obligations pursuant to Section 1.6(d).  All outstanding Company Units are duly authorized, validly issued, fully paid and non-assessable and, except as set forth on Section 2.2(a) of the Disclosure Schedule, are not subject to preemptive rights created by statute, the Charter Documents or any agreement to which the Company is a party or by which it is bound.  All outstanding Company Units and Company Options have been issued or repurchased (in the case of Company Units or Company Options that were outstanding and repurchased by the Company or any Unitholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of Company Units or Company Options that were outstanding and repurchased by the Company or any Securityholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents.  Except as set forth on Section 2.2(a) of the Disclosure Schedule, no Securityholder has exercised any right of redemption, if any, provided for in the Operating Agreement with respect to Company Class A Preferred Units or Company Class B Preferred Units, and the Company has not received notice that any Securityholder intends to exercise such rights.  Except as set forth on Section 2.2(a) of the Disclosure Schedule, no Company Units are unvested.  For purposes of this Agreement, a Company Unit shall be deemed to be “unvested” if such Company Unit is not vested or is subject to a repurchase option, risk of forfeiture or other condition under any applicable unit restriction agreement or other agreement with the Company.  Except as set forth on Section 2.2(a) of the Disclosure Schedule, there are no other “membership interests” of the Company and no outstanding commitments to issue any membership interests after the date of this Agreement.  For purposes of this Agreement, a

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“membership interest” shall be deemed to be an Interest (as such term is defined in the Operating Agreement).  Except as set forth on Section 2.2(a) of the Disclosure Schedule, membership interests of the Company are free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest, and are not subject to preemptive rights, rights of first refusal, rights of first offer or similar rights created by statute, the Operating Agreement or any agreement to which the Company is a party or to which it is bound.  All of the issued and outstanding Company Units have been offered, issued and sold by the Company in compliance with all applicable federal and state securities or “blue sky” Laws.  There is no indebtedness having the right to vote on any matters on which the Members may vote.

(b)                                 Except for the Plan and as set forth on Section 2.2(b) of the Disclosure Schedule, the Company has never adopted, sponsored or maintained any unit option plan or any other plan or agreement providing for equity compensation to any Person.  Under the Plan, Class C Units may be issued to Employees, Managers and Consultants upon the issuance of units or the exercise of Company Options granted under the Plan, of which (1) 1,436,634 units are issuable, as of the date of this Agreement, upon the exercise of outstanding, unexercised Company Options granted under the Plan; and (2) 100,000 units have been issued upon the exercise of Company Options granted under the Plan and remain outstanding as of the date of this Agreement.  No Company Class C Units are issuable upon the exercise of outstanding Company Options that have not been issued under the Plan.  Section 2.2(b) of the Disclosure Schedule sets forth, for each outstanding Company Option, (A) the name of the holder of such option; (B) the type of entity of such holder, and any ultimate parent entity of such holder, if not an individual; (C) the address of such holder on file with the Company; (D) the number of Company Class C Units issuable upon the exercise of such option; (E) the exercise price of such option; (F) the date of grant of such option; (G) the vesting schedule for such option, including the extent vested as of the date of this Agreement and whether the vesting of such option is subject to acceleration as a result of the transactions contemplated by this Agreement or any other events (including a complete description of any such acceleration provisions); and (H) whether such option was issued pursuant to the Plan.  True, correct and complete copies of all agreements and instruments relating to or issued pursuant to the Plan have been made available to Parent and such agreements and instruments have not been amended, modified or supplemented, and there are no agreements to amend, modify or supplement such agreements or instruments from the forms thereof made available to Parent.

(c)                                  Except for the Company Options and as set forth in Section 2.2(c) of the Disclosure Schedule, there are no options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which the Company is a party or by which the Company is bound that obligate the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any Company Units or other membership units in the Company or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement.  There are no outstanding or authorized unit appreciation, phantom unit, profit participation, or other similar rights with respect to the equity of the Company (whether payable in equity, cash or otherwise).  Except as contemplated hereby or as set forth in Section 2.2(c) of the Disclosure Schedule, there are no voting trusts, proxies, or other agreements or understandings with respect to the voting interests of the Company.  Other than the Operating Agreement, there are no agreements to which the Company is a party relating to the registration, sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Units.  As a result of the Merger, Parent will be the sole record and beneficial holder of all issued and outstanding Company Units, all membership interests in the Company and all rights to acquire or receive any Company Units, whether or not such Company Units are outstanding.

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(d)                                 Section 2.2(d) of the Disclosure Schedule sets forth the outstanding principal, accrued interest and applicable rate of interest of all outstanding loans from the Company to any Securityholder.

(e)                                  The allocation of the Merger Consideration set forth in Section 1.6(b) is and will be consistent with the Operating Agreement as of immediately prior to the Effective Time.

(f)                                    The information contained in the Spreadsheet will be true, correct and complete as of the Closing Date.

(g)                                 Except as set forth on Section 2.2(g) of the Disclosure Schedule, the Company does not have, and has never had, any subsidiaries or Affiliates, and does not otherwise own and has never otherwise owned any shares of capital stock or any interest in, and does not control and has never controlled, directly or indirectly, any other Person.  The Company is not a participant in any joint venture, partnership, limited liability company or similar arrangement.  Since its inception, the Company has not consolidated or merged with, or acquired all or substantially all of the assets of, or acquired the stock of or any interest in, any Person.

2.3                                 Authority.

(a)                                  The Company has all requisite power and authority to enter into this Agreement and any Related Agreements to which it is a party and to consummate the transactions contemplated hereby and thereby.  The execution and delivery of this Agreement and any Related Agreements to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary corporate action on the part of the Company and no further action is required on the part of the Company to authorize the Agreement and any Related Agreements to which it is a party and the transactions contemplated hereby and thereby, other than the approval of this Agreement and the transactions contemplated hereby by the Members.  The vote required to approve this Agreement and the transactions contemplated hereby by the Members is set forth on Section 2.3 of the Disclosure Schedule.  This Agreement and the transactions contemplated hereby have been unanimously approved by the Board of Managers of the Company.  This Agreement and each of the Related Agreements to which the Company is a party have been duly executed and delivered by the Company.

(b)                                 Assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement and each of the Related Agreements to which the Company is a party constitute the valid and binding obligations of the Company enforceable against it in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights generally and by general principles of equity.

2.4                                 No Conflict.  Except as set forth on Section 2.4 of the Disclosure Schedule, the execution and delivery by the Company of this Agreement and any Related Agreement to which the Company is a party, and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in any violation of or default under (with or without notice or lapse of time or both) or give rise to a right of first refusal, termination, cancellation, modification or acceleration of any obligation or loss of any benefit under (any such event, a “Conflict”) (a) any provision of the Charter Documents; (b) any material mortgage, indenture, lease (including all Lease Agreements), binding (whether oral or written) contract, covenant, plan, insurance policy or other agreement, instrument or commitment, permit, concession, franchise or license (each a “Contract” and collectively the “Contracts”) to which the Company is a party or by which any of its properties or assets (whether tangible or intangible) are bound; or (c) any material judgment, Action, Order, decree, statute, Law, ordinance, rule or regulation applicable

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to the Company or any of its properties or assets (whether tangible or intangible).  Section 2.4 of the Disclosure Schedule sets forth all necessary notices, consents, waivers and approvals that are required under any Contract in connection with the consummation of the Merger or for any such Contract to remain in full force and effect without limitation, modification or alteration after the Effective Time so as to preserve all rights of, and benefits to, the Company pursuant to each such Contract from and after the Effective Time.  Except as set forth on Section 2.4 of the Disclosure Schedule, following the Effective Time, the Surviving Company will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments that the Company would otherwise be required to pay pursuant to the terms of such Contracts had the transactions contemplated by this Agreement not occurred.

2.5                                 Consents.  Except as set forth on Section 2.4 of the Disclosure Schedule, no consent, notice, waiver, approval, Order or authorization of, or registration, declaration or filing with, any Governmental Entity or any third party, including a party to any agreement with the Company (so as not to trigger any Conflict), is required by, or with respect to, the Company in connection with the execution and delivery of this Agreement and any Related Agreement to which the Company is a party or the consummation of the transactions contemplated hereby and thereby except for (a) such consents, notices, waivers, approvals, Orders, authorizations, registrations, declarations and filings as may be required under applicable securities laws; (b) if necessary or required, the filing of the Notification and Report Forms with the United States Federal Trade Commission (“FTC”) and the Antitrust Division of the United States Department of Justice (“DOJ”) required by the HSR Act and the expiration or termination of the applicable waiting period under the HSR Act and such consents, waivers, approvals, Orders, authorizations, registrations, declarations and filings as may be required under the foreign merger control regulations; (c) the filing of the Certificate of Merger with the Secretary of State of the State of Florida; (d) the adoption of this Agreement and approval of the transactions contemplated by this Agreement by the Unitholders; and (e) such notices, consents, waivers and approvals as are set forth in Section 2.4 of the Disclosure Schedule.

2.6                                 Company Financial Statements.

(a)                                  Section 2.6(a) of the Disclosure Schedule sets forth the Company’s (a) audited balance sheet as of each of December 31, 2008 and December 31, 2009 and unaudited balance sheet as of December 31, 2010 (December 31, 2010, the “Balance Sheet Date”), and the related statements of income, cash flow and unitholders’ equity for the respective 12 month periods then ended (the “Year-End Financials”); and (b) the unaudited balance sheet as of March 31, 2011 and the related unaudited statements of income, cash flow and unitholders’ equity for the quarter then ended (the “Interim Financials”).

(b)                                 The Year-End Financials and the Interim Financials (together, the “Financials”) are true, correct and complete in all material respects and have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated and consistent with each other (except that the Interim Financials do not contain footnotes and other presentation items that may be required by GAAP).  The Financials present fairly the Company’s financial condition, operating results and cash flows as of the dates and during the periods indicated therein, subject in the case of the Interim Financials to normal year-end adjustments, which are not material in amount or significance in any individual case or in the aggregate.  The Company’s unaudited balance sheet as of March 31, 2011 is referred to hereinafter as the “Current Balance Sheet.”  The Company has not had any disagreement (as such term is defined in Item 304 of Regulation S-K promulgated under the Exchange Act) with any of its auditors regarding accounting matters or policies during any of its past three full fiscal years or during the current fiscal year-to-date.  The books and records of the Company have been, and are being, maintained in all material respects in accordance with applicable legal and accounting requirements and the Financials are

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consistent with such books and records.  The Company is not a party to, and does not have any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract relating to any transaction or relationship between or among the Company, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose Person, on the other hand, or any “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K promulgated under the Exchange Act).  As of the Closing Date, the Financials (i) will be true, correct and complete in all material respects and will have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated and consistent with each other (except that the Interim Financials do not contain footnotes and other presentation items that may be required by GAAP), and (ii) will present fairly the Company’s financial condition, operating results and cash flows as of the dates and during the periods indicated therein.  The Company has identified all uncertain tax positions, if any, contained in all Returns filed by the Company and has established adequate reserves and made any appropriate disclosures in the Financials in accordance with the requirements of ASC 740-10 (formerly Financial Interpretation No. 48 of Financial Accounting Standards Board Statement No. 109, Accounting for Uncertain Tax Positions).

2.7                                 Internal Controls.  The Company has established and maintains a system of internal accounting controls that are effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP (including the Financials), including procedures that (a) require the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company; (b) provide assurance that such transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP and that receipts and expenditures of the Company are being made only in accordance with appropriate authorizations of management and the Board of Managers of the Company; and (c) provide assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company.  Neither the Company (including any Employee) nor, to the Company’s Knowledge, the Company’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company; (ii) any fraud or other wrongdoing that involves the Company’s management or other Employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company; or (iii) any claim or allegation regarding any of the foregoing.

2.8                                 No Undisclosed Liabilities.  The Company does not have any Liability, Indebtedness, obligation, expense, dispute, claim, deficiency, guaranty or endorsement of any type, whether accrued, absolute, contingent, matured, unmatured or other (whether or not required to be reflected in Financials in accordance with GAAP), except for those that (a) have been reflected in the Current Balance Sheet; (b) have arisen in the ordinary course of business consistent with past practices since the Balance Sheet Date and do not exceed $25,000 individually or $50,000 in the aggregate; or (c) as of the Closing are Transaction Expenses listed on the Statement of Expenses.

2.9                                 No Changes.  Since the Balance Sheet Date, (i) the business of the Company has been conducted in the ordinary course consistent with past practice; (ii) there has not been any Effect that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; and (iii) there has not been any action or event, nor any authorization, commitment or agreement by the Company with respect to any action or event that, if taken or if it occurred after the date of this Agreement, would be prohibited by Section 4.1, other than as disclosed in Section 4.1 of the Disclosure Schedule.

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2.10                           Accounts Receivable.

(a)                                  The Company has made available to Parent a list of all accounts receivable of the Company as of the Balance Sheet Date, together with an aging schedule indicating a range of days elapsed since invoice (such list and aging schedule, the “A/R Schedule”).

(b)                                 All of the accounts receivable of the Company set forth on the A/R Schedule (i) arose in the ordinary course of business; (ii) are carried at values determined in accordance with GAAP consistently applied; (iii) are not subject to any valid set-off or counterclaim; (iv) do not represent obligations for goods sold on consignment, on approval, subject to acceptance, or on a sale-or-return basis or subject to any other repurchase or return arrangement; and (v) are collectible except to the extent of reserves therefor set forth in the Current Balance Sheet or, for receivables arising subsequent to the Balance Sheet Date, as reflected on the books and records of the Company (which receivables are recorded in accordance with GAAP consistently applied).  Except as set forth in Section 2.10(b) of the Disclosure Schedule, no Person has any Lien on any accounts receivable of the Company, and no request or agreement for deduction or discount has been made with respect to any accounts receivable of the Company other than in the ordinary course of business consistent with past practices and no greater than $5,000 individually or $25,000 in the aggregate.

2.11                           Tax Matters.

(a)                                  Definition of Taxes.  For the purposes of this Agreement, the term “Tax” or, collectively, “Taxes” shall mean (i) any and all U.S. federal, state, local and non-U.S. taxes, assessments and other governmental charges, duties, impositions and liabilities, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, escheat, employment, excise and property taxes as well as public imposts, fees and social security charges (including health, unemployment, workers’ compensation and pension insurance), together with all interest, penalties and additions imposed with respect to such amounts, (ii) any liability for the payment of any amounts of the type described in clause (i) of this Section 2.11(a) as a result of being a member of an affiliated, consolidated, combined, unitary or similar group for any period (including any arrangement for group or consortium relief or similar arrangement), and (iii) any liability for the payment of any amounts of the type described in clauses (i) or (ii) of this Section 2.11(a) as a result of any obligation to indemnify any other Person or as a result of any obligation under any agreement or arrangement with any other Person with respect to such amounts and including any liability for taxes of a predecessor or transferor or otherwise by operation of law.

(b)                                 Tax Returns and Audits.

(i)                                                       The Company has (A) prepared and timely filed all required U.S. federal, state, local and non-U.S. returns, estimates, information statements and reports, including attachments and amendments thereto relating to any and all Taxes concerning or attributable to the Company or its operations (“Returns”) and such Returns are true, correct and complete and have been completed in accordance with applicable law, and (B) timely paid all Taxes it is required to pay.

(ii)                                                    The Company has paid or withheld with respect to its employees and other third parties all U.S. federal, state, local and non-U.S. income Taxes and social security charges and similar fees, Federal Insurance Contribution Act amounts, Federal Unemployment Tax Act amounts and all other Taxes required to be withheld or paid, and has timely paid any such Taxes withheld over to the appropriate authorities.

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(iii)                                                 The Company has not been delinquent in the payment of any material Tax, nor is there any Tax deficiency outstanding, assessed or proposed against the Company, nor has the Company executed any waiver of any statute of limitations on or extending the period for the assessment or collection of any Tax.

(iv)                                                No audit or other examination of any Return of the Company is presently in progress, nor has the Company been notified of any request for such an audit or other examination.  No adjustment relating to any Return filed by the Company has been proposed by any Tax authority to the Company or any representative thereof and is pending.  No claim has ever been made by a Tax authority that the Company is or may be subject to taxation in a jurisdiction in which it does not file Returns.

(v)                                                   As of the Balance Sheet Date and as of the date of the Interim Financials, the Company did not have any liabilities for unpaid Taxes that had not been accrued or reserved on the Current Balance Sheet or the Interim Financials, as applicable, whether asserted or unasserted, contingent or otherwise, and the Company has not incurred any liability for Taxes since the Balance Sheet Date other than in the ordinary course of business consistent with past practice.  Adequate accruals or reserves have been established in the Company’s Tax and accounting books and records for all liabilities for Taxes incurred by the Company since the date of the Interim Financials, whether asserted or unasserted, contingent or otherwise.

(vi)                                                The Company has made available to Parent copies of all Returns for the Company filed for all periods since the year ended December 31, 2007.

(vii)                                             There are (and immediately following the Effective Time there will be) no Liens on the assets of the Company relating to or attributable to Taxes other than Liens for Taxes not yet due and payable.  There is no basis for the assertion of any claim relating or attributable to Taxes that, if adversely determined, would result in any Lien on the assets of the Company.

(viii)                                          The Company has never engaged in a “reportable transaction” as set forth in Treas. Reg. §1.6011-4(b), including any transaction that is the same or substantially similar to one of the types of transactions that the IRS has determined to be a Tax avoidance transaction and identified by notice, regulation, or other form of published guidance as a “listed transaction,” as set forth in Treasury Regulation Section 1.6011-4(b)(2).

(ix)                                                  The Company has been treated and is and has been validly classified for U.S. federal income tax purposes as a partnership or disregarded entity at all times since inception.  No election has been made within the last sixty (60) months to change the Company’s tax classification for U.S. federal income tax purposes.

(x)                                                     The Company is not and has not at any time been treated as resident in any country other than the United States for any Tax purpose (including under any Tax treaty).  The Company is not subject to Tax in any non-U.S. jurisdiction by virtue of having a permanent establishment, place of business or source of income in that jurisdiction.  The Company is not liable for any non-U.S. Tax as the agent of any other Person or business or on the basis that it constitutes a permanent establishment or other place of business of any other Person, business or enterprise for any Tax purpose.

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(c)                                  Section 409A; Stock Options and Other Equity Awards.

(i)                                                       Except as set forth on Section 2.11(c)(i)(1) of the Disclosure Schedule, the Company is not a party to any contract, agreement or arrangement that is a “nonqualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code).  Each such nonqualified deferred compensation plan set forth on Section 2.11(c)(i)(2) of the Disclosure Schedule was operated between January 1, 2005 and December 31, 2008 in compliance with Section 409A of the Code and the guidance and regulations thereunder, and any applicable state Law equivalent (together, “Section 409A”).  Except as set forth on Section 2.11(c)(i)(3) of the Disclosure Schedule, since January 1, 2009, each such nonqualified deferred compensation plan has been in documentary and operational compliance with Section 409A, including the final Treasury Regulations issued thereunder.  No nonqualified deferred compensation plan that was originally exempt from application of Section 409A has been “materially modified” (within the meaning of IRS Notice 2005-1) at any time after October 3, 2004.  Except as may result pursuant to Section 2.11(c)(i)(3) of the Disclosure Schedule, no compensation shall be includable in the gross income of any Employee as of any date on or prior to the Effective Time as a result of the operation of Section 409A of the Code with respect to any arrangements or agreements in effect prior to the Effective Time.  Except as may result pursuant to Section 2.11(c)(i)(3) of the Disclosure Schedule, to the extent required, the Company has properly reported and/or withheld and remitted on amounts deferred under any Company nonqualified deferred compensation plan subject to Section 409A of the Code.

(ii)                                                    No Company Option or other unit right (A) has an exercise price that has been or may be less than the fair market value of the underlying equity as of the date such option or right was granted; (B) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such option or rights; (C) has been granted after December 31, 2004, with respect to any class of units of the Company that is not “service recipient stock” (to the extent such term applies, for purposes of Section 409A of the Code, to equity interests in a non-corporate entity); or (D) has at any time not been properly accounted for in accordance with GAAP in the Year-End Financials.  There is no Contract, agreement, plan or arrangement to which the Company or any of its ERISA Affiliates is a party, including the provisions of this Agreement, covering any Employee that individually or collectively could require the Company or any of its Affiliates to pay a Tax gross up payment to, or otherwise indemnify or reimburse, any Employee for Tax-related payments under Section 409A.  There is no Contract, agreement, plan or arrangement, other than those set forth on Section 2.11(c)(i)(1) of the Disclosure Schedule, to which the Company is a party, including the provisions of this Agreement, that, individually or collectively, could give rise to a Parent (including any of its subsidiaries) or Company or other penalty under Section 409A of the Code or that would give rise to an Employee Tax and/or Company reporting obligations under Section 409A of the Code.

2.12                           Restrictions on Business Activities.  Except as set forth in Section 2.12 of the Disclosure Schedule, there is no agreement (non-competition or otherwise), Contract, commitment, judgment, injunction, Order or decree to which the Company is a party or otherwise binding upon the Company that has or may reasonably be expected to have the effect of prohibiting or impairing (a) any business practice of the Company; (b) any acquisition of property (tangible or intangible) by the Company; (c) the conduct of business by the Company as presently conducted or contemplated be conducted; or (d) otherwise limiting the freedom of the Company to engage in any line of business or to compete with any Person.  Without limiting the generality of the foregoing, except as set forth in Section 2.12 of the Disclosure Schedule, the Company has not entered into any Contract or agreement pursuant to which the Company is restricted from selling, licensing, manufacturing or otherwise distributing any of its Technology or products or from providing services to customers or potential customers or any class of customers, in any geographic area, during any period of time or in any segment of the market, or from hiring or soliciting potential employees, consultants or independent contractors.

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2.13                           Title to Properties; Absence of Liens and Encumbrances; Condition of Equipment.

(a)                                  The Company does not own any real property, nor has the Company ever owned any real property.

(b)                                 Section 2.13(b) of the Disclosure Schedule sets forth a true, correct and complete list of all real property currently leased, subleased or licensed by or from the Company or otherwise used or occupied by the Company (the “Leased Real Property”), including (i) the name of the lessor, licensor, sublessor, master lessor and/or lessee; (ii) the date and term of the lease, license, sublease or other occupancy right and each amendment thereto; and (iii) with respect to any current lease, license, sublease or other occupancy right, the square footage of the premises leased thereunder and the aggregate annual rental payable thereunder.

(c)                                  The Company has made available to Parent true, correct and complete copies of all current leases, lease guaranties, subleases, agreements for the leasing, use or occupancy of, or otherwise granting a right in or relating to the Leased Real Property, including all amendments, terminations and modifications thereof and all consents and waivers relating thereto (“Lease Agreements”).  Other than those identified on Section 2.13(b) of the Disclosure Schedule, there are no other Lease Agreements for real property affecting the Leased Real Property or to which Company is bound.  All Lease Agreements are in full force and effect and valid and effective in accordance with their respective terms, and there is not, under any of such Lease Agreements, any existing default, no rentals past due, or Company event of default (or event which with notice or lapse of time, or both, could constitute a Company default).  The Company has not received any notice of a default, alleged failure to perform or any offset or counterclaim with respect to any such Lease Agreement that, as of the date of this Agreement, has not been fully remedied and withdrawn.  Except as set forth on Section 2.13(b) of the Disclosure Schedule, the Closing will not affect the enforceability against any Person of any Lease Agreement or any rights of the Company or the Surviving Company thereunder or otherwise with respect to any Leased Real Property, including the right to the continued use and possession of the Leased Real Property for the conduct of business as presently conducted.  The Company currently occupies all of the Leased Real Property for the operation of its business except as set forth on Section 2.13(b) of the Disclosure Schedule.  Except as set forth on Section 2.13(b) of the Disclosure Schedule, there are no other parties occupying, or with a right to occupy, the Leased Real Property.  Except as set forth on Section 2.13(b) of the Disclosure Schedule, the Company does not owe any brokerage commissions or finders’ fees with respect to any Leased Real Property or would owe any such fees if any existing Lease Agreement were renewed pursuant to any renewal options contained in such Lease Agreement.

(d)                                 The Leased Real Property is (i) in reasonable operating condition and repair, (ii) maintained in a manner consistent with standards generally followed with respect to similar properties, and (iii) suitable for the conduct of the business as presently conducted.  To the Knowledge of the Company, such Leased Real Property, including the improvements thereon, does not violate in any material respect any applicable building code, zoning requirement or Law relating to such property or operations thereon, and any such non-violation is not dependent on any “non-conforming use” exceptions.

(e)                                  To the Knowledge of the Company, as of the date of this Agreement, the landlord under each Lease Agreement has complied materially with all of the requirements, conditions, representations, warranties and covenants of the landlord thereunder, including the timely completion of construction of the leased premises in a good and workmanlike manner and otherwise in accordance with the Lease Agreements.

(f)                                    The Company has good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of its material tangible properties and material assets, real, personal

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and mixed, used or held for use in its business, free and clear of any Liens, except (i) as reflected in the Current Balance Sheet, (ii) Liens for Taxes not yet due and payable and (iii) such imperfections of title and encumbrances, if any, that do not detract from the value or interfere with the present use of the property subject thereto or affected thereby.  Each Lease Agreement constitutes the entire agreement of the landlord and the tenant thereunder, and no term or condition thereof has been modified, amended or waived, except as described on Section 2.13(b) of the Disclosure Schedule and shown in the copies of the Lease Agreements that have been made available to Parent.  Except as set forth on Section 2.13(f) of the Disclosure Schedule, the Company has not transferred or assigned any interest in any Lease Agreement, nor has the Company subleased or otherwise granted rights of use or occupancy of any of the premises described therein to any other Person.

(g)                                 Section 2.13(g) of the Disclosure Schedule lists, as of March 31, 2011, all material items of equipment (the “Equipment”) owned or leased by the Company, and such Equipment is (i) adequate for the conduct of the business of the Company as currently conducted, and (ii) in good operating condition, subject to normal wear and tear.

2.14                           Intellectual Property.

(a)                                  Definitions.  For all purposes of this Agreement, the following terms shall have the following respective meanings:

“Company Form Agreements” shall mean any or all of the following Contracts to which the Company is a party: (i) non-exclusive end user agreements (whether denominated as licenses, subscriptions or otherwise) for Company Products and Services on the form(s) set forth in Section 2.14(a)-1 of the Disclosure Schedule and (ii) non-disclosure agreements entered into in the ordinary course of business on forms substantially similar to those set forth on Section 2.14(a)-2 of the Disclosure Schedule.

“Company Intellectual Property Rights” shall mean any and all Intellectual Property Rights that are held in the name of, owned, or purported to be owned by or exclusively licensed to the Company.

“Company Products and Services” shall mean all products, technologies and service offerings that have been or are currently being marketed, offered, sold, distributed, made commercially available, or otherwise provided to customers by or for the Company and any such products, technologies and service offerings that are currently under development.

“Inbound License Agreements” shall mean any Contract under which the Company acquires, licenses or obtains (contingent or otherwise) rights of any Intellectual Property Right of a third Person.

“Intellectual Property” shall mean any Intellectual Property Rights and Technology.

“Intellectual Property Rights” shall mean worldwide common law and statutory rights associated with (A) patents and patent applications; (B) copyrights, copyright registrations and copyright applications, rights in databases, “moral” rights and mask work rights; (C) the protection of trade and industrial secrets and confidential information; (D) other proprietary rights relating to intangible intellectual property; (E) trademarks, trade names, logos and service marks; (F) rights in domain names and web sites addresses, (G) analogous rights to those set forth above; (H) divisions, continuations, renewals, reissuances and extensions of the foregoing (as applicable); and (I) rights to ▇▇▇ for past, present and future infringement or misappropriation of the foregoing.

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“Open Source License” shall mean licenses that allow for non-exclusive use, distribution and modification, including Software and other materials licensed under a Creative Commons License, open database license, Apache License, the Mozilla Public License, the GPL or LGPL, or any other licenses that require the distribution of Source Code in connection with the distribution of Open Source Materials or that prohibits the Company from charging a fee or otherwise seeking compensation in connection with sublicensing or distributing such Open Source Materials.

“Open Source Materials” shall mean Software or other material that is distributed as “free software,” “open source software” or under a similar licensing or distribution model (including but not limited to the Open Source Licenses).

“Outbound License Agreement” shall mean any Contract under which the Company disposes, licenses or provides (contingent or otherwise) rights to any Company Intellectual Property Right to a third Person, including without limitation any right to access data and/or databases (regardless of whether such data or database would qualify as an Intellectual Property Right).

“Registered Intellectual Property” shall mean Intellectual Property Rights that have been registered, filed, certified or otherwise perfected or recorded with or by any state, government or other public or quasi-public legal authority, including domain names.

“Software” means any and all computer software and code, including assemblers, applets, compilers, source code, object code, data (including image and sound data), design tools, and user interfaces, in any form or format, however fixed.  “Software” specifically includes Source Code listings and documentation.

“Source Code” means computer software and code, in form other than object code form, including related programmer comments and annotations, help text, data and data structures, instructions and procedural, object-oriented and other code, which may be printed out or displayed in human readable form.

“Standard Contract” shall mean any Contract to which the Company is a party that (i) provides the Company a license to generally commercially available binary code (other than development tools and development environments and Open Source Materials) where available for a cost of not more than U.S. $2,500 for a perpetual license for a single user or work station (or $7,500 in the aggregate for all users and work stations) or (ii) non-disclosure agreements entered into in the ordinary course of business on forms substantially similar to those set forth in Section 2.14(a)-2 of the Disclosure Schedule.

“Technology” shall mean any or all of the following: (A) works of authorship including computer programs, source code, and executable code, whether embodied in software, firmware or otherwise, architecture, documentation, designs, files, records, and data; (B) inventions (whether or not patentable), discoveries and improvements; (C) proprietary and confidential information, trade secrets and know how; (D) databases, data compilations and collections and technical data; (E) logos, trade names, trade dress, trademarks and service marks; (F) domain names, web addresses and sites; (G) tools, methods and processes; (H) devices, prototypes, schematics, breadboards, netlists, test methodologies, verilog files, emulation and simulation reports, test vectors and any hardware; and (I) any and all instantiations of the foregoing in any form and embodied in any media.

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(b)                                 Registered Intellectual Property.

(i)                                                       Section 2.14(b)(i)-1 of the Disclosure Schedule lists all Registered Intellectual Property owned or purported to be owned by, held or filed in the name of, the Company (the “Company Registered Intellectual Property”).  For each item of Company Registered Intellectual Property, Section 2.14(b)(i)-2 of the Disclosure Schedule also sets forth, to the extent applicable (A) the title, application serial number, registration number, filing date, issue date (if issued) and other appropriate identifying information; (B) jurisdiction where the application/registration is located; (C) the name of the applicant/registrant and current owners(s); and (D) the current attorney of record the name of the attorney handling the prosecution of such item of Company Registered Intellectual Property with contact information.

(ii)                                                    Each item of Company Registered Intellectual Property is valid and subsisting, and all necessary registration, maintenance and renewal fees in connection with such Company Registered Intellectual Property have been paid and all necessary documents and certificates in connection with such Company Registered Intellectual Property have been filed with the relevant patent, copyright, trademark or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such Registered Intellectual Property.

(iii)                                                 Except as set forth on Section 2.14(b)(iii) of the Disclosure Schedule, there are no actions that must be taken by the Company within 60 days of the Closing Date, including the payment of any registration, maintenance or renewal fees or the filing of any documents, applications or certificates for the purposes of maintaining, perfecting or preserving or renewing any Company Registered Intellectual Property.

(iv)                                                Except as set forth on Section 2.14(b)(iv) of the Disclosure Schedule, in each case in which the Company has acquired any Intellectual Property from any Person, the Company has obtained a valid and enforceable assignment sufficient to irrevocably transfer such Intellectual Property (including the right to seek past and future damages with respect thereto) to the Company and, to the maximum extent provided for by, and in accordance with, applicable Laws and regulations, the Company has recorded each such assignment with the relevant governmental authorities, including the PTO, the U.S. Copyright Office, or their respective equivalents in any relevant foreign jurisdiction, as the case may be.

(v)                                                   Each Item of Company Registered Intellectual Property has been prosecuted in compliance with all applicable rules, policies and procedures of the applicable Governmental Entity.  Neither the Company nor any other Person on behalf of the Company has taken any action or failed to take any action, which action or failure reasonably could be expected to result in the abandonment, cancellation, forfeiture, relinquishment, invalidation or unenforceability of any of the Company Registered Intellectual Property.  Without limiting the foregoing, the Company has not taken any action, or failed to take any action that would hinder, restrict or impair, under any theory, including, but not limited to, laches or estoppel, Parent’s ability to assert or enforce any of the Company Registered Intellectual Property.

(vi)                                                Section 2.14(b)(vi) of the Disclosure Schedule lists any proceedings or actions before any Governmental Entity (including the United States Patent and Trademark Office (the “PTO”) or equivalent authority anywhere in the world) in which any of the Company Registered Intellectual Property is involved, including any proceedings or actions in which claims are raised relating to the validity, enforceability, scope, ownership or infringement of any of the Company Registered Intellectual Property.

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(vii)                                             The Company has not committed any illegal tying, illegal term extension, misuse, patent marking, other illegal anti-competition activities, laches, estoppel, waiver, inequitable conduct in violation of 35 C.F.R. 1.56 or other law, that may result in the unenforceability or invalidity of any Company Registered Intellectual Property.

(viii)                                          To the extent that the Company has claimed any special status, including, but not limited to, “small entity status,” such that the Company was qualified to do so at the time and none of the Company Registered Intellectual Property have at any time been licensed, nor has any other right with respect to the Company Registered Intellectual Property been granted, to any entity that was not a “small entity” or of an equivalent status.

(ix)                                                  The Company has not received any written notice from any source alleging or otherwise suggesting that the Company Registered Intellectual Property may be invalid, unpatentable or unenforceable.

(c)                                  Company Products and Services.  Section 2.14(c) of the Disclosure Schedule sets forth an accurate and complete list identifying: (i) all material Company Intellectual Property Rights that are not Company Registered Intellectual Property; and (ii) all Company Products and Services.

(d)                                 Ownership.

(i)                                                       All Company Intellectual Property Rights will be fully transferable, alienable and/or licensable by Surviving Corporation and/or Parent without restriction and without payment of any kind to any third party.

(ii)                                                    Except as set forth in Section 2.14(d)(ii) of the Disclosure Schedule, each Company Intellectual Property Right, including all Company Registered Intellectual Property, and all material Technology licensed to the Company, is free and clear of any Liens.

(iii)                                                 Except as set forth in Section 2.14(d)(iii) of the Disclosure Schedule, the Company is the exclusive owner of all Company Intellectual Property Rights.

(iv)                                                Except as set forth in Section 2.14(d)(iv) of the Disclosure Schedule, the Company has not (i) transferred (or agreed to transfer) ownership of, or granted (or agreed to grant) any exclusive license of or exclusive right to use, or authorized the retention of any exclusive rights to use or joint ownership of, any Intellectual Property Right that is or was a Company Intellectual Property Right, or (ii) permitted any of its rights in a Company Intellectual Property Right to lapse or enter into the public domain.

(v)                                                   The Company has, and following Closing, the Surviving Corporation will have the exclusive right to bring actions against any person that is infringing or misappropriating any Company Intellectual Property Rights and to retain for the Surviving Corporation any damages recovered in any such action.

(vi)                                                Except as set forth in Section 2.14(d)(vi) of the Disclosure Schedule, the Company Intellectual Property Rights are valid, subsisting and enforceable.

(vii)                                             Except as set forth in Section 2.14(d)(vii) of the Disclosure Schedule, to the extent that any Intellectual Property has been developed or created independently or jointly by any person other than the Company for which the Company has, directly or indirectly, provided consideration for such development or creation, the Company has a written agreement with such person

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with respect thereto, and pursuant thereto the Company has obtained ownership of, and is the exclusive owner of, all such Intellectual Property by operation of law or by valid assignment, and has required the waiver of all non assignable rights, including all author or moral rights.

(e)                                  Intellectual Property Contracts.

(i)                                                       Section 2.14(e)(i) of the Disclosure Schedule sets forth an accurate and complete list of all Inbound License Agreements other than Standard Agreements.

(ii)                                                    Section 2.14(e)(ii) of the Disclosure Schedule sets forth a complete and accurate list of all Outbound License Agreements other than Company Form Agreements

(iii)                                                 Except as set forth in Section 2.14(e)(ii) of the Disclosure Schedule, to the knowledge of the Company, all of the Company’s rights and licenses under the Inbound License Agreements are valid and the Company’s rights and licenses are enforceable and are free and clear of any and all Liens.

(iv)                                                No loss or expiration of any material Intellectual Property Right licensed to the Company under any Inbound License Agreement is pending or reasonably foreseeable or, to the knowledge of the Company, threatened.

(v)                                                   No Person other than Company under any Inbound License Agreement has any ownership or exclusive license rights in or with respect to any improvements, enhancements, modifications or Derivative Works made by or for the Company to the Intellectual Property Rights licensed thereunder.

(vi)                                                Other than the license grants included in Contracts listed in Section 2.15(e)(ii) of the Disclosure Schedule, the Company has not granted any covenant not to ▇▇▇ or assert its rights with respect to any Company Intellectual Property Rights.

(vii)                                             The Company is not in breach of, nor has the Company failed to perform under, any Inbound License Agreements or Outbound License Agreements and, to the Knowledge of the Company, no other party to any such Inbound License Agreements or Outbound License Agreements is in breach thereof.  Except as set forth in Section 2.14(e)(vii), there are no disputes regarding the scope of or performance under such Inbound License Agreements or Outbound License Agreements including with respect to any payments to be made or received by the Company thereunder, except for disputes involving Outbound License Agreements and amounts less than $5,000 individually or $25,000 in the aggregate.

(viii)                                          Except as set forth in Section 2.14(e)(viii) of the Disclosure Schedule, the Intellectual Property licensed pursuant to the Inbound License Agreements constitutes all of the Intellectual Property of a third Person that is used in, necessary to or otherwise would be infringed by the conduct of the business of the Company as it currently is conducted or planned to be conducted, including the design, development, manufacture, use, import, marketing, licensing out and sale of any Company Product or Service or Technology (including products, Technology or services currently under development).

(ix)                                                  Other than Inbound License Agreements and Outbound License Agreements listed in Sections 2.14(e)(i) and (ii) of the Disclosure Schedule, the Standard Contracts and Company Form Agreements, there are no other material contracts, licenses or agreements to which the

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Company is a party with respect to any Company Intellectual Property Rights or other Intellectual Property Right.

(x)                                                     Other than Company Form Agreements and Outbound License Agreements listed in Section 2.14(e)(ii) of the Disclosure Schedule, there are no contracts, licenses or agreements between the Company and any other Person wherein or whereby the Company has agreed to, or assumed, any obligation or duty, that is not capped to a maximum amount of liability no greater than $25,000 or the amounts paid under such agreements, to warrant, indemnify, reimburse, hold harmless, guaranty or otherwise assume or incur any obligation or liability or provide a right of rescission with respect to the infringement or misappropriation by the Company or such other Person of any third party Intellectual Property Rights.

(xi)                                                  Except as set forth in Section 2.14(e)(xi), there are no contracts, licenses or agreements between the Company and any other person with respect to Company Intellectual Property Rights or other Intellectual Property used in and/or necessary to the conduct of the business as it is currently conducted or planned to be conducted under which there is any threatened or ongoing action, claim or proceeding or, to the Knowledge of Company, other dispute regarding the scope of such agreement, or performance under such agreement including with respect to any payments to be made or received by the Company thereunder, except for disputes involving Outbound License Agreements and amounts less than $5,000 individually or $25,000 in the aggregate.

(xii)                                               Other than (i) the Open Source Software listed in Section 2.14(k) of the Disclosure Schedule and (ii) the Intellectual Property licensed pursuant to the agreements set forth on Section 2.14(e)(i) of the Disclosure Schedule, all Intellectual Property that is used in or necessary to the conduct of Company’s business as presently conducted or currently contemplated to be conducted by the Company was written and created solely by either (i) Employees acting within the scope of their employment who have validly and irrevocably assigned all of their rights, including all Intellectual Property Rights therein, to the Company, or (ii) by third parties who have validly and irrevocably assigned all of their rights, including all Intellectual Property Rights therein, to the Company, and no third party owns or has any rights to any of the Company Intellectual Property Rights.

(xiii)                                            The Company has never been a member or promoter of, or a contributor to, any industry standards body or any similar organization that could reasonably be expected to require or obligate the Company to grant or offer to any other Person any license or right to any Company Intellectual Property Rights.  In addition, if any Company Intellectual Property Rights were acquired from a Person other than an Employee, then, to the Knowledge of the Company, such Person is not now nor has ever been a member or promoter of, or a contributor to, any industry standards body or any similar organization that could reasonably be expected to have required or obligated such Person to grant or offer to any other Person any license or right to such Intellectual Property Right.  The Company does not have any present obligation (and there is no substantial basis to expect that there will be a future obligation) to grant or offer to any other Person any license or right to any Company Intellectual Property Right by virtue of Company’s or, to the Knowledge of the Company, any other Person’s membership in, promotion of, or contributions to any industry standards body or any similar organization.

(f)                                    Non-Infringement.

(i)                                                       Except as set forth on Section 2.14(f)(i) of the Disclosure Schedule, the operation of the business of the Company, including the design, development, use, import, branding, advertising, promotion, marketing, manufacture, licensing out, provision and sale of any Company Product and Service or Technology of the Company (including products, Technology or services

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currently under development) has not and does not infringe and does not misappropriate, and will not infringe and will not misappropriate, when conducted by Parent and/or the Surviving Corporation in substantially the same manner following the Closing, any Intellectual Property Rights of any Person, violate any right of any Person (including any right to privacy or publicity), or constitute unfair competition or trade practices under the Laws of any jurisdiction

(ii)                                                    Except as set forth in Section 2.14(f)(ii) of the Disclosure Schedule, the Company has not received notice from any Person claiming that such operation or any act, any Company Product and Service or Technology of the Company infringes or misappropriates any Intellectual Property Rights of any Person or constitutes unfair competition or trade practices under the laws of any jurisdiction (nor, to the Knowledge of the Company, is there any basis therefor).

(iii)                                                 To the Knowledge of the Company, no Person is infringing or misappropriating any Company Intellectual Property Rights.

(iv)                                                No (1) product, Technology, service or publication of the Company, (2) material published or distributed by the Company, or (3) conduct or statement of the Company includes or constitutes a defamatory statement or material, false advertising or otherwise violates any Law or regulation

(g)                                 Transaction.

(i)                                                       Except as set forth in Section 2.14(g)(i) of the Disclosure Schedule, neither this Agreement nor the transactions contemplated by this Agreement, including the assignment to Parent by operation of law or otherwise of any contracts or agreements to which the Company is a party, will result in: (i) Parent, any of its subsidiaries or the Surviving Corporation granting to any third party any right to or with respect to any Intellectual Property Rights owned by, or licensed to, either the Parent, any of its subsidiaries or the Surviving Corporation; (ii) Parent, any of its subsidiaries or the Surviving Corporation, being bound by, or subject to, any non-compete or other material restriction on the operation or scope of their respective businesses; or (iii) Parent, any of its subsidiaries or the Surviving Corporation being obligated to pay any royalties or other material amounts, or offer any discounts, to any third party in excess of those payable by, or required to be offered by, Parent, any of its subsidiaries or the Surviving Corporation, respectively, in the absence of this Agreement or the transactions contemplated hereby.

(ii)                                                    Except as set forth in Section 2.14(g)(ii) of the Disclosure Schedule, the consummation of the transactions contemplated in this Agreement will neither violate nor result in the breach, modification, cancellation, termination or suspension of (or give the other party thereto the right to cause any of the foregoing) any of the Inbound License Agreements or Outbound License Agreements and, following the Closing, Surviving Company will be permitted to exercise all of Company’s rights and receive all of Company’s benefits (including payments) under such Inbound License Agreements or Outbound License Agreements to the same extent and scope that Company’s would have been able to had the transactions contemplated by this Agreement not occurred and without the payment of any additional amounts or consideration other than the ongoing fees, royalties or other payments which Company’s would otherwise have been required to pay pursuant to the terms of such Inbound License Agreements or Outbound License Agreements had the transactions contemplated by this Agreement not occurred.

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(h)                                 Trade Secrets.

(i)                                                       The Company has taken all reasonable steps that are required or necessary to protect the Company’s rights in confidential information (including all trade secrets) of the Company or provided by any other Person to the Company.

(ii)                                                    Without limiting the foregoing, subject to and except as set forth in Section 2.14(h)(ii) of the Disclosure Schedule, (1) the Company has, and enforces, a policy requiring each current and former Employee to execute proprietary information, confidentiality and assignment agreements in the Company’s standard form for employees (a copy of which is attached as Schedule 2.14(h)(ii)-1 hereto (the “Employee Proprietary Information Agreement”)); (2) the Company has, and enforces, a policy requiring each current and former Consultant or contractor to execute a consulting agreement containing proprietary information, confidentiality and assignment provisions in the Company’s standard form for consultants or contractors (a copy of which is attached as Schedule 2.14(h)(ii)-2 hereto (the “Consultant Proprietary Information Agreement”)); and (3) all current and former Employees, Consultants and contractors of the Company have executed an Employee Proprietary Information Agreement or a Consultant Proprietary Information Agreement, as appropriate.

(iii)                                                 Except as set forth in Section 2.14(h)(iii) of the Disclosure Schedule, neither the Company nor any other Person acting on its behalf has disclosed, delivered or licensed to any Person, agreed to disclose, deliver or license to any Person, or permitted the disclosure or delivery to any escrow agent or other Person of, any source code for any Company Intellectual Property Right except for disclosures to Employees, contractors or Consultants of the Company pursuant to agreements that prohibit use or disclosure except in the performances of services to the Company.

(i)                                     Restrictions.  No Company Intellectual Property Rights, product or service of the Company is subject to any proceeding or outstanding decree, Order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or may affect the validity, use or enforceability of such Company Intellectual Property Rights.

(j)                                     Government Entity.

(i)                                                       No government funding, facilities or resources of a university, college, other educational institution, research center or Governmental Entity or funding from third parties (other than private investors in the ordinary course of business) was used in the development of the Company Intellectual Property Rights.

(ii)                                                    No Governmental Entity, university, college, other educational institution or research center has any claim or right in or to the Company Intellectual Property Rights.

(iii)                                                 Except as set forth on Section 2.14(j)(iii) of the Disclosure Schedule, no current or former Employee, Consultant or independent contractor of the Company who was involved in, or who contributed to, the creation or development of any Company Intellectual Property Rights has performed services for the government, a university, college or other educational institution, or a research center, during a period of time during which such Employee, Consultant or independent contractor was also performing services for the Company.

(k)                                  Open Source Materials.

(i)                                                       Section 2.14(k)(i) of the Disclosure Schedule lists all Open Source Materials that have been used, linked to and/or incorporated into any Company Product and describes:

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(1) the applicable Open Source License, (2) the website or other source form where such Open Source Material has been obtained and (3) to the extent known by Company, the copyright holder(s) of such Open Source Materials.

(ii)                                                    Section 2.14(k)(ii) of the Disclosure Schedule lists all Open Source Materials that have been distributed or made available by the Company.

(iii)                                                 The Company has never used and/or incorporated Open Source Software in any manner that would or could (1) require the disclosure or distribution in source code form of any Company Intellectual Property Rights, (2) require the licensing of any Company Intellectual Property Rights for the purpose of making derivative works, (3) impose any restriction on the consideration to be charged for the distribution of any Company Product and Service, (4) create, or purport to create, obligations for the Company with respect to Company Intellectual Property Rights or grant, or purport to grant, to any third party, any rights or immunities under Company Intellectual Property Rights, or (5) impose any other material limitation, restriction, or condition on the right of the Company to use or distribute any Company Product or Service.

(iv)                                                The Company has been and is in compliance with all applicable Open Source Licenses with respect Open Source Materials.  The Company has not received notice from any Person claiming any violation by the Company of any term or condition of an Open Source License.

(l)                                     Company Products and Services.

(i)                                                       Except for the warranties and indemnities contained in those contracts and agreements set forth in Section 2.14(l)(i) of the Disclosure Schedule and warranties implied by law which cannot be disclaimed, the Company has never given any warranties or indemnities relating to Company Products and Services sold or services rendered by the Company.

(ii)                                                    The Company has provided Parent a release schedule of Company Products and Services which schedule is included in Section 2.14(l)(ii) of the Disclosure Schedule.  The Company has a good faith reasonable belief that it can achieve the release of Company Products and Services on such schedule and, to its Knowledge, is not currently aware of any change in its circumstances or other fact that has occurred that would cause it to believe that it will be unable to meet such release schedule.

(iii)                                                 The Company’s current (as of the date of this Agreement) list of known bugs maintained by its development or quality control groups with respect to the products and services of the Company is set forth on Section 2.14(l)(iii) of the Disclosure Schedule.

(iv)                                                All products and services (and all parts thereof) of the Company are free of any and all “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other software routines or hardware components that permit unauthorized access or the unauthorized disablement or erasure of such product or service (or all parts thereof) of the Company or data or other software of users (“Contaminants”).

(v)                                                   Section 2.14(l)(v) of the Disclosure Schedule sets forth a list of all agreements that provide for a service level for Company Products and Services that is different than that set forth in the Company Form Agreements.

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(vi)                                                Section 2.14(l)(vi) of the Disclosure Schedule sets forth a list of all agreements that provide for a data security and confidentiality obligations in connection with Company Products and Services that is different than that set forth in the Company Form Agreements.

(vii)                                             The Company has not paid any damages, penalties or amounts to any Person because of Company’s breach of service level obligations or data security provision with respect to any Company Products and Services, except for damages, penalties or amounts set forth on Section 2.14(l)(vii) of the Disclosure Schedule and damages, penalties or amounts less than $5,000 individually or $25,000 in the aggregate.

(m)                               Privacy.

(i)                                                       Section 2.14(m)(i) of the Disclosure Schedule generally describes all Personally Identifiable Information collected by the Company through Internet websites owned, maintained or operated by the Company (“Company Sites”), and through any Company Products and Services (“Company Services”).  “Personally Identifiable Information” shall mean any information that alone or in combination with other information held by the Company can be used to specifically identify a natural Person.

(ii)                                                    Except as set forth on Section 2.14(m)(ii) of the Disclosure Schedule, the Company has complied with all applicable Laws, contractual and fiduciary obligations, and its internal privacy policies relating to (i) the privacy of users of Company Sites and (ii) the collection, storage, transfer and any other processing of any Personally Identifiable Information collected or used by the Company in any manner or maintained by third parties having authorized access to such information.

(iii)                                                 The execution, delivery and performance of this Agreement complies with all applicable laws relating to privacy and with the Company’s privacy policies.

(iv)                                                Copies of all current and prior privacy policies of the Company that apply to the Company Sites or the Company Services are attached to Section 2.14(m)(iv) of the Disclosure Schedule.  Each such privacy policy and all materials distributed or marketed by the Company have at all times made all disclosures to users or customers required by applicable Laws, and none of such disclosures made or contained in any such privacy policy or in any such materials has been inaccurate, misleading or deceptive or in violation of any applicable Laws.

(v)                                                   With respect to all Personally Identifiable Information, the Company has at all times taken all steps reasonably necessary (including implementing and monitoring compliance with adequate measures with respect to technical and physical security) to ensure that the Personally Identifiable Information is protected against loss and against unauthorized access, use, modification, disclosure or other misuse.  Except as set forth on Section 2.14(m)(v) of the Disclosure Schedule, there has been no unauthorized access to or other misuse of that Personally Identifiable Information.

(n)                                 Data Security.

(i)                                                       The Company has taken the steps and implemented the procedures specified in Section 2.14(n)(i) of the Disclosure Schedule to protect the information technology systems used in connection with the operation of the Company from Contaminants.

(ii)                                                    The Company has the disaster recovery and security plans, procedures and facilities for the business specified in Section 2.14(n)(ii) of the Disclosure Schedule.

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(iii)                                                 To the Knowledge of the Company, except as set forth in Section 2.14(n)(iii) of the Disclosure Schedule, there have been no material unauthorized intrusions or breaches of the security of information technology systems and the Company is in compliance with all obligations to provide notice of any unauthorized access or breach of its information technology systems.

2.15                           Agreements, Contracts and Commitments.

(a)                                  Except as set forth on Section 2.15 of the Disclosure Schedule (specifying the appropriate paragraph), the Company is not a party to, or bound by:

(i)                                                       any (A) employment, contractor or consulting agreement; (B) Contract or commitment with an Employee, Consultant or contractor; or (C) any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any Employee;

(ii)                                                    any agreement or plan, including any unit option plan, unit appreciation rights plan or unit purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or in connection with additional or subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;

(iii)                                                 any fidelity or surety bond or completion bond;

(iv)                                                any collective bargaining, union or works council agreements;

(v)                                                   any lease of personal property having a value in excess of $25,000 individually or $50,000 in the aggregate;

(vi)                                                any agreement that imposes surety, guaranty or indemnification obligations on the Company (other than indemnities contained in non-exclusive licenses of Company Products and Services to customers that have been entered into in the ordinary course of business consistent with past practice pursuant to the Company Form Agreements);

(vii)                                             Inbound License Agreement (excluding Standard Contracts);

(viii)                                          Outbound License Agreement (excluding Company Form Agreements);

(ix)                                                  any agreement, Contract, lease or commitment relating to capital expenditures and involving future payments in excess of $25,000 individually or $50,000 in the aggregate;

(x)                                                     any agreement, Contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of business consistent with past practice;

(xi)                                                  any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;

(xii)                                               any purchase order or contract for the purchase of materials involving in excess of $25,000 individually or $50,000 in the aggregate;

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(xiii)                                            any construction contracts;

(xiv)                                           any joint marketing, joint venture, partnership, strategic alliance, affiliate or development agreement;

(xv)                                              any agreement, Contract or commitment to alter the Company’s interest in any Person in which the Company directly or indirectly holds any interest;

(xvi)                                           any agreement, Contract or commitment pursuant to which the Company has undertaken to, or pursuant to which the receipt of revenue is contingent upon, the delivery of products or service offerings not in commercial existence as of the date of this Agreement, and specifically not contingent upon the release of any new product or new version of an existing product;

(xvii)                                        any agreement, Contract, arrangement or understanding between the Company and a customer or partner of the Company pursuant to which paid fees must be refunded, payment of fees is contingent upon or an agreement may be terminated in the event a specified return on investment or similar success measure for use of the products or service offerings offered by the Company is not achieved;

(xviii)                                     any agreement, Contract, arrangement or understanding between the Company and a customer or partner of the Company that includes a “most favored customer” or similar clause;

(xix)                                             any agreement, Contract, arrangement or understanding between the Company and a customer or partner of the Company for which application revenue, under GAAP, may not be recognized on a pro rata basis over the term of the agreement or for which any application revenue must be deferred or put on hold pending a future event;

(xx)                                                any dealer, distribution, sales representative, original equipment manufacturer, value added, remarketer, reseller, independent software vendor or other agreement for distribution of the products, Technology or services of the Company; or

(xxi)                                             any other agreement, Contract, lease or commitment, including any service, operating or management agreement or arrangement with respect to any Leased Real Property, that involves $25,000 individually or $50,000 in the aggregate or more.

(b)                                 Each Contract to which the Company is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company enforceable, to the Knowledge of the Company, against each of the other parties thereto in accordance with its terms, and is in full force and effect with respect to the Company and, to the Knowledge of the Company, the other parties thereto, except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights generally and by general principles of equity.  The Company is in material compliance with, and has not materially breached, violated or defaulted under, or received notice or has any reason to believe that a customer or other third party may assert that the Company has materially breached, violated or defaulted under, any of the terms or conditions of any such Contract, nor, to the Knowledge of the Company, is any party obligated to the Company pursuant to any such Contract subject to any breach, violation or default thereunder, nor, to the Knowledge of the Company, has event occurred that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company or any such other party.  True, correct and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this

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Section 2.15 (each, a “Material Contract” and collectively, the “Material Contracts”) have been made available to Parent.

(c)                                  The Company has fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the date of this Agreement, and, without giving effect to the Merger, the Company will use its commercially reasonable efforts to fulfill, when due, all of its material obligations under the Material Contracts that remain to be performed after the date of this Agreement.

(d)                                 Except as set forth on Section 2.15(d) of the Disclosure Schedule, all outstanding Indebtedness of the Company may be prepaid without penalty.

(e)                                  Section 2.15(e) of the Disclosure Schedule sets forth all of the Company’s oral Contracts, agreements, arrangements and commitments (“Oral Arrangements”), along with a summary of the material terms of each Oral Arrangement, including the parties to (and the date, if available, and term of) such Oral Arrangement, obligations of each party, and pricing terms.

2.16                           Certain Relationships and Related Transactions.  Except as set forth on Section 2.16 of the Disclosure Schedule, none of the officers and Managers of the Company and, to the Knowledge of the Company, none of the Employees or Securityholders, nor, to the Knowledge of the Company, any immediate family member of an officer, Manager, Employee or Securityholder, has or has had any direct or indirect ownership, participation, royalty or other interest in, or is an officer, director, employee of or consultant or contractor for any firm, partnership, entity or corporation that competes with, or does business with, or has any contractual arrangement with, the Company (except with respect to any interest in less than 1% of the stock of any publicly traded corporation).  Except as set forth on Section 2.16 of the Disclosure Schedule, none of such officers, Managers, Employees, Securityholders or immediate family members is a party to or, to the Knowledge of the Company, otherwise directly or indirectly interested in, any Contract to which the Company or is a party or by which the Company or any of its assets or properties may be bound or affected, other than normal employment, compensation and benefit arrangements for services as an officer, Manager, director or Employee thereof.  To the Knowledge of the Company, none of such officers, Managers, Employees, Securityholders or immediate family members has any interest in any property, real or personal, tangible or intangible (including any Intellectual Property) that is used in, or that relates to, the business of the Company, except for the rights of Unitholders under applicable Law.  To the Knowledge of the Company, there are no agreements, Contracts, or commitments with regard to contribution or indemnification between or among any of the Securityholders.

2.17                           Governmental Authorization.  Each material consent, license, permit, grant or other authorization (a) pursuant to which the Company currently operates or holds any interest in any of its properties, or (b) that is required for the operation of the Company’s business as currently conducted or the holding of any such interest (collectively, “Company Authorizations”) has been issued or granted to the Company.  The Company is and has been at all times in compliance, in all material respects, with all Company Authorizations.  The Company Authorizations are in full force and effect and constitute all of the material consents, licenses, permits, grants or other authorizations required to permit the Company to operate or conduct its business or hold any interest in its properties or assets.

2.18                           Litigation.  There is no Action, suit or proceeding, or claim which could reasonably be expected to result in a Legal Proceeding, of any nature pending or, to the Knowledge of the Company, threatened against the Company, its properties (tangible or intangible) or any of its officers or Managers, nor, to the Knowledge of the Company, are there facts or circumstances that make such an Action, suit, proceeding or claim reasonably likely.  There is no investigation or other proceeding pending or, to the

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Knowledge of the Company, threatened against the Company, any of its properties (tangible or intangible) or any of its officers or Managers by or before any Governmental Entity, nor to the Knowledge of the Company, are there facts and circumstances which make such an investigation or proceeding reasonably likely.  No Governmental Entity has at any time challenged or questioned the legal right of the Company to conduct its operations as presently or previously conducted or as currently contemplated to be conducted.  There is no Action, suit or proceeding, or claim which could reasonably be expected to result in a Legal Proceeding, of any nature pending or, to the Knowledge of the Company, threatened against any Person who has a contractual right or a right pursuant to Florida Law or any other applicable Law to indemnification from the Company related to facts and circumstances existing prior to the Effective Time, nor are there, to the Knowledge of the Company, facts or circumstances that would be reasonably likely to give rise to any such Action, suit, claim or proceeding.

2.19                           Minute Books.  The minutes of the Company (all of which have been made available to Parent) contain complete and accurate records of all actions taken, and summaries of all meetings held, by the Members and the Board of Managers of the Company (and any committees thereof) since August 6, 2008, and all material actions taken or decisions made prior to such date which require ratification or approval have been subsequently approved or ratified as appropriate.  At the Closing, the minute books of the Company will be in the possession of the Company.

2.20                           Environmental Matters.

(a)                                  The Company (i) has not received any notice or other communication of any alleged claim, violation of or liability under any Environmental Law which has not heretofore been cured or for which there is any remaining liability; (ii) has not disposed of, emitted, discharged, handled, stored, transported, used or released any Hazardous Materials, distributed, sold or otherwise placed on the market Hazardous Materials or any product containing Hazardous Materials, arranged for the disposal, discharge, storage or release of any Hazardous Materials, or exposed any Employee or other individual to any Hazardous Materials so as to give rise to any liability or corrective or remedial obligation under any Environmental Laws; (iii) has not entered into any agreement that may require it to guarantee, reimburse, pledge, defend, hold harmless or indemnify any other party with respect to liabilities arising out of Environmental Laws or the Hazardous Materials Activities of the Company; (iv) has been and is in compliance with all Environmental Laws; and (v) has made available to Parent all records in the Company’s possession concerning the Hazardous Materials Activities of the Company and all environmental audits and environmental assessments of any facility owned, leased or used at any time by the Company.  To the Knowledge of the Company, there is no fact or circumstance that could involve the Company in any environmental litigation or impose upon the Company any environmental liability.  To the Knowledge of the Company, there are no Hazardous Materials in, on, or under any properties owned, leased or used at any time by the Company such as could give rise to any liability or corrective or remedial obligation of the Company under any Environmental Laws.

(b)                                 For the purposes of this Section 2.20, (i) “Environmental Laws” shall mean all federal, state, local and foreign Laws and regulations relating to pollution, protection of the environment, worker health and safety and exposure of any individual to Hazardous Materials, including Laws and regulations relating to emissions, discharges, releases or threatened releases of Hazardous Materials, or otherwise relating to the manufacture, processing, registration, distribution, labeling, recycling, use, treatment, storage, disposal, transport or handling of Hazardous Materials and including any Hazardous Materials related electronic waste, product content or product take-back requirements; (ii) “Hazardous Materials” shall mean chemicals, pollutants, contaminants, wastes, toxic substances, emissions, discharges, radioactive and biological materials, asbestos-containing materials (ACM), hazardous substances, petroleum and petroleum products or any fraction thereof, excluding office and cleaning supplies used by the Company in the ordinary course of business; and (iii) “Hazardous Material

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Activity” shall mean the transportation, transfer, recycling, disposal, storage, use, labeling, treatment, manufacture, removal, remediation, release, exposure of others to, sale, or distribution of any Hazardous Material or any product or waste containing a Hazardous Material, or product manufactured with ozone depleting substances, including any payment of waste fees or charges (including so-called electronic waste fees) and compliance with any product take-back or product content requirements.

2.21                           Brokers’ and Finders’ Fees; Transaction Expenses.

(a)                                  Except as set forth on Section 2.21(a) of the Disclosure Schedule, the Company has not incurred, nor will it incur, directly or indirectly, any Liability for brokerage or finders’ fees or agents’ commissions, fees related to investment banking or similar advisory services or any similar charges in connection with the Agreement or any transaction contemplated hereby, nor will Parent, Merger Sub or the Surviving Company incur, directly or indirectly, any such Liability based on arrangements made by or on behalf of the Company.

(b)                                 Section 2.21(b) of the Disclosure Schedule sets forth the Company’s current reasonable estimate of all Transaction Expenses incurred, or expected to be incurred, by the Company in connection with the negotiation and effectuation of the terms and conditions of this Agreement and the transactions contemplated hereby.

2.22                           Employee Benefit Plans and Compensation.

(a)                                  Prior Employee Arrangements.  Prior to January 1, 2009, the Company had no individuals classified as employees on its payroll and instead obtained its operating personnel by means of a contract with an outsourcing (“employee leasing”) company, Oasis Outsourcing, Inc. (“Oasis”).  All such “leased employees” were paid wages by Oasis and were provided employee benefits through plans and arrangements of Oasis.  In conformance with the requirements of Oasis, the Company was indicated as a participating employer in the 401(k) plan maintained by Oasis.  The Company has no Knowledge of any documentary or operational concerns regarding plans and arrangements of Oasis but has not made any inquiries thereof.

(b)                                 Definitions.  For all purposes of this Agreement, the following terms shall have the following respective meanings:

(i)                                                       “Company Employee Plan” shall mean any plan, program, policy, practice, contract, agreement or other arrangement, whether written or unwritten, providing for compensation, severance, change of control pay, termination pay, deferred compensation, performance awards, unit or unit-related awards, welfare benefits, fringe benefits or other employee benefits or remuneration of any kind, funded or unfunded, including each “employee benefit plan,” within the meaning of Section 3(3) of ERISA which is or has been established, adopted, sponsored, maintained, contributed to, or required to be contributed to, by the Company or any ERISA Affiliate for the benefit of any Employee, or with respect to which the Company or any ERISA Affiliate has or may have any liability or obligation, including any International Employee Plan.

(ii)                                                    “COBRA” shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

(iii)                                                 “Consultant” shall mean any individual providing (or who has in the past provided) services to the Company or any ERISA Affiliate who is not an Employee or a Manager.

(iv)                                                “DOL” shall mean the United States Department of Labor.

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(v)                                                   “Employee” shall mean any current or former employee, Consultant or Manager of the Company or any ERISA Affiliate.

(vi)                                                “Employee Agreement” shall mean each management, employment, severance, separation, settlement, consulting, contractor, relocation, change of control, retention, bonus, repatriation, expatriation, loan, visa, work permit or other agreement, or contract (including any offer letter or any agreement providing for acceleration of Company Options, or any other agreement providing for compensation or benefits) between the Company or any ERISA Affiliate and any Employee, whether written or unwritten.

(vii)                                             “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

(viii)                                          “ERISA Affiliate” shall mean any other Person under common control with the Company or that, together with the Company, could be deemed to be a “single employer” within the meaning of Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code, and the regulations issued thereunder.

(ix)                                                  “FMLA” shall mean the Family Medical Leave Act of 1993, as amended.

(x)                                                     “HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996, as amended.

(xi)                                                  “International Employee Plan” shall mean each Company Employee Plan or Employee Agreement that has been established, adopted or maintained, or contributed to or required to be contributed to, by the Company or any ERISA Affiliate, whether formally or informally or with respect to which the Company or any ERISA Affiliate will or may have any liability with respect to Employees who perform services outside the United States.

(xii)                                               “IRS” shall mean the United States Internal Revenue Service.

(xiii)                                            “Manager” shall mean an individual who is not an Employee and who serves or has served as a member of the Board of Managers of the Company.

(xiv)                                           “Pension Plan” shall mean each Company Employee Plan that is an “employee pension benefit plan,” within the meaning of Section 3(2) of ERISA, or an International Employee Plan and that: (1) provides a guaranteed or minimum rate guarantee; (2) is not account-based with individual participant accounts; and (3) is designed to accumulate or accrue a benefit, annuity payment or a cash balance that a service provider of the Company could draw upon at a specific age, or retirement or following separation from service.

(c)                                  Schedule.

(i)                                                       Section 2.22(c)(i) of the Disclosure Schedule contains a true, correct and complete list of each Company Employee Plan and each Employee Agreement.

(ii)                                                    Section 2.22(c)(ii) of the Disclosure Schedule sets forth a true, correct and complete table setting forth the name and salary of each current Employee as of the date of this Agreement.

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(iii)                                                 Section 2.22(c)(iii) of the Disclosure Schedule contains a true, correct and complete list of all Persons that as of the date of this Agreement have a service, consulting or advisory relationship with the Company other than as an Employee and a brief description of such relationship.

(iv)                                                Neither the Company nor any ERISA Affiliate has made any plan or commitment to (A) establish any new Company Employee Plan or Employee Agreement; (B) to modify any Company Employee Plan or Employee Agreement (except to the extent required by Law or to conform any such Company Employee Plan or Employee Agreement to the requirements of any applicable Law, in each case as previously disclosed to Parent in writing, or as required by this Agreement); or (C) to adopt or enter into, or contribute or agree to contribute to, any Company Employee Plan or Employee Agreement.  To the Knowledge of the Company, except as set forth on Section 2.22(c)(iv) of the Disclosure Schedule, no Employee intends to terminate his or her employment for any reason.  Other than the Plan, no Company Employee Plan permits by its terms participation in or provides benefits to any Consultant or Manager.

(d)                                 Documents.  The Company has provided to Parent (i) a true, correct and complete copy of documents embodying each Company Employee Plan (including each International Employee Plan, if any) and each Employee Agreement, including all amendments thereto and all related trust documents, that are listed on Section 2.22(c)(i) of the Disclosure Schedule.  The furnished documents include: (ii) the reports for 2009 (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under ERISA or the Code in connection with each Company Employee Plan; (iii) if a Company Employee Plan is funded, the most recent annual accounting of Company Employee Plan assets; (iv) the summary plan description for the 401(k) plan and insurance certificates issued with respect to Company Employee Plans that are insured; (v) all material written agreements and contracts relating to each Company Employee Plan, including administrative service agreements and group insurance contracts; (vi) written communications, if any, material for 2011 to Employees generally relating to any Company Employee Plan and any proposed Company Employee Plan, any written communications to Employees relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events which would result in any liability to the Company; (vii) all material correspondence to or from any governmental agency, if any, relating to any Company Employee Plan; (viii) all policies, if any, pertaining to fiduciary liability insurance covering the fiduciaries for each Company Employee Plan; (ix) nondiscrimination test reports and summaries for each Company Employee Plan for the 2010 plan year, if any are required; and (x) all IRS determination or opinion letters issued, if any, and all applications and correspondence with the IRS and/or the DOL, if any, with respect to such application or letter with respect to each Company Employee Plan.

(e)                                  Employee Plan Compliance.  The Company and each ERISA Affiliate has performed in all material respects all obligations required to be performed by them under, is not in default or violation of, and, to the Knowledge of the Company, there has been no default or violation by any other party to, any Company Employee Plan.  Except as set forth on Section 2.22(e) of the Disclosure Schedule, each Company Employee Plan has been established and maintained in all material respects in accordance with its terms and in material compliance with all applicable Laws, statutes, Orders, rules and regulations, including ERISA and the Code.  Any Company Employee Plan intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code and, there has been no event, condition or circumstance that has adversely affected or is likely to adversely affect its tax-qualified status.  Except as set forth on Section 2.22(e) of the Disclosure Schedule, no “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Sections 4975(c)(2) and 4975(d) of the Code or Section 408 of ERISA, has occurred with respect to any

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Company Employee Plan.  There are no actions, suits or claims pending or, to the Knowledge of the Company, threatened or reasonably anticipated (other than routine claims for benefits) against any Company Employee Plan or against the assets of any Company Employee Plan.  Each Company Employee Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without material liability to Parent, the Company or any ERISA Affiliate.  There are no audits, inquiries or proceedings pending or, to the Knowledge of the Company, threatened by the IRS, DOL or any other Governmental Entity with respect to any Company Employee Plan.  To the Knowledge of the Company, neither the Company nor any ERISA Affiliate is subject to any penalty or Tax with respect to any Company Employee Plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code.  Except as set forth on Section 2.22(e) of the Disclosure Schedule, the Company has timely made all contributions and other payments required by and due under the terms of each Company Employee Plan.

(f)                                    The Company is in material compliance with all of its bonus, commission and other compensation plans and has paid any and all amounts required to be paid under such plans, including any and all bonuses and commissions (or pro rata portion thereof) that may have accrued or been earned through the calendar quarter preceding the Closing Date, and is not liable for any payments, taxes or penalties for failure to comply with any of the terms or conditions of such plans or the laws governing such plans.

(g)                                 No Pension Plan or Funded Welfare Plans or MEWAs.  Neither the Company nor any ERISA Affiliate has ever maintained, established, sponsored, participated in, contributed to or agreed to contribute to, or otherwise be part of, any (i) Pension Plan, including a plan that is subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code, (ii) a “funded welfare plan” within the meaning of Section 419 of the Code, or (iii) a Multiple Employer Welfare Arrangement, as defined under Section 3(40)(A) of ERISA (without regard to Section 514(b)(6)(B) of ERISA), established or maintained for the purpose of offering or providing welfare plan benefits to the employees of two or more employer (including one or more self-employed individuals), or to their beneficiaries.

(h)                                 No Self-Insured Plan.  Except as set forth on Section 2.22(h) of the Disclosure Schedule, neither the Company nor any ERISA Affiliate has ever maintained, established, sponsored, participated in, contributed to, or agreed to contribute to any self-insured plan that provides benefits to Employees (including any such plan pursuant to which a stop-loss policy or contract applies) and no Company Employee Plan is self-insured.

(i)                                     No Collectively Bargained, Multiemployer and Multiple-Employer Plan.  At no time has the Company or any ERISA Affiliate contributed to or been obligated to contribute to any multiemployer plan (as defined in Section 3(37) and 4001(a)(3) of ERISA).  Neither the Company nor any ERISA Affiliate has at any time ever maintained, established, sponsored, participated in or contributed to any multiple employer plan or to any plan described in Section 413 of the Code.

(j)                                     No Retiree Obligations.  No Company Employee Plan or Employee Agreement provides, or reflects or represents any liability to provide, retiree life insurance, retiree health or other retiree employee welfare benefits to any person for any reason, except as may be required by COBRA or other applicable Law, and the Company has not ever represented, promised or contracted (whether in oral or written form) to any Employee (either individually or to Employees as a group) or any other person that such Employee(s) or other person would be provided with retiree life insurance, retiree health or other retiree employee welfare benefits, except to the extent required by statute.

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(k)                                  COBRA; FMLA; HIPAA.  The Company and each ERISA Affiliate has, prior to the Effective Time, complied in all material respects with COBRA, FMLA, HIPAA, the Patient Protection and Affordable Care Act, the Women’s Health and Cancer Rights Act of 1998, the Newborns’ and Mothers’ Health Protection Act of 1996, the Medicare Prescription Drug, Improvement and Modernization Act of 2003, Patient Protection and Affordable Care Act of 2010, and any similar provisions of state Law applicable to its Employees and the applicable Company Employee Plan.  To the Knowledge of the Company, to the extent required under HIPAA and the regulations issued thereunder, the Company has, prior to the Effective Time, performed in all material respects all obligations under the medical privacy rules of HIPAA (45 C.F.R. Parts 160 and 164), the nondiscrimination requirements of HIPAA (45 C.F.R. Parts 144 and 146), the electronic data interchange requirements of HIPAA (45 C.F.R. Parts 160 and 162), and the security requirements of HIPAA (45 C.F.R. Part 142) as applicable to any Company Employee Plan.

(l)                                     Effect of Transaction.  Except as set forth in Section 2.22(l) of the Disclosure Schedule, a Change of Control Trigger will not (i) result in any payment (including compensation, severance, golden parachute, bonus or otherwise) becoming due to any Employee, (ii) result in any forgiveness of indebtedness, (iii) materially increase any benefits otherwise payable by the Company, (iv) result in any obligation to fund benefits with respect to any Employee, or (v) result in the acceleration of the time of payment or vesting of any such benefits except as required under Section 411(d)(3) of the Code ((i) through (v), inclusive, collectively, the “Change of Control Benefits”).  “Change of Control Trigger” shall mean either (A) the execution and delivery of this Agreement, (B) the approval by the Members of the Merger, this Agreement or the consummation of the transactions contemplated hereby, or (C) the consummation of the transactions contemplated hereby, in each case, either alone or in connection with any other event, including any termination of employment or service.  “Change of Control Agreement” shall mean each Company Employee Plan and each Employee Agreement under which a Change of Control Trigger will or could result in any Change of Control Benefits (without regard to any amendment(s) thereto entered into in accordance with the Recitals of this Agreement).  Section 2.22(l) of the Disclosure Schedule lists all Change of Control Agreements.

(m)                               Employment Matters.  The Company is in compliance in all material respects with all applicable foreign, federal, state and local Laws, rules and regulations respecting employment, employment practices, terms and conditions of employment, worker classification, tax withholding, prohibited discrimination, equal employment, fair employment practices, meal and rest periods, immigration status, employee safety and health, wages (including overtime), compensation, and hours of work, and in each case, with respect to Employees: (i) has withheld and reported all amounts required by law or by agreement to be withheld and reported with respect to wages, salaries and other payments to Employees, (ii) is not liable for any arrears of wages, severance pay or any Taxes or any penalty for failure to comply with any of the foregoing, and (iii) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Entity with respect to unemployment compensation benefits, social security or other benefits or obligations for Employees (other than routine payments to be made in the normal course of business and consistent with past practice).  There are no Actions, suits, claims or administrative matters pending, or, to the Knowledge of the Company, threatened against the Company or any of its Employees relating to any Employee, Employee Agreement or Company Employee Plan.  There are no pending, or, to the Knowledge of the Company, threatened claims or actions against the Company or any Company trustee under any worker’s compensation policy or long-term disability policy.  The Company is not a party to a conciliation agreement, consent decree or other agreement or Order with any Governmental Entity with respect to employment practices.  The services provided by each of the Company’s and its ERISA Affiliates’ Employees is terminable at the will of the Company and its ERISA Affiliates and any such termination would result in no liability to the Company or any ERISA Affiliate.  Section 2.22(m) of the Disclosure Schedule lists all Liabilities of the Company to any Employee, that result from the termination by the

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Company or Parent of such Employee’s employment or provision of services, a change of control of the Company, or a combination thereof.  Neither the Company nor any ERISA Affiliate has direct or indirect liability with respect to any misclassification of any person as an independent contractor rather than as an employee, with respect to any employee leased from another employer or with respect to any person currently or formerly classified as exempt from overtime and minimum wages.

(n)                                 Labor.  No work stoppage, slowdown, concerted refusal to work overtime, labor strike, or other labor dispute against the Company is pending, or to the Knowledge of the Company, threatened.  To the Knowledge of the Company, there are no activities or proceedings of any labor union to organize any Employees.  There are no Actions, suits, claims, labor disputes or grievances pending, or, to the Knowledge of the Company, threatened relating to any labor matters involving any Employee, including charges of unfair labor practices.  The Company has not engaged in any unfair labor practices within the meaning of the National Labor Relations Act.  The Company is not presently, nor has it been in the past, a party to, or bound by, any collective bargaining agreement or union contract with respect to Employees and no collective bargaining agreement is being negotiated by the Company.

(o)                                 No Interference or Conflict.  To the Knowledge of the Company, no Securityholder, Manager, officer, Employee or Consultant of the Company is obligated under any Contract or agreement, or subject to any judgment, decree, or Order of any Court or Governmental Entity that would interfere with such Person’s efforts to promote the interests of the Company or that would interfere with the Company’s business.  Neither the execution nor delivery of this Agreement, nor the carrying on of the Company’s business as presently conducted nor any activity of such officers, Managers, Employees or Consultants in connection with the carrying on of the Company’s business as presently conducted will, to the Knowledge of the Company, conflict with or result in a breach of the terms, conditions, or provisions of, or constitute a default under, any contract or agreement under which any of such officers, Managers, Employees, or Consultants is now bound.

(p)                                 International Employee Plan.  Neither the Company nor any ERISA Affiliate currently or has it ever had the obligation to maintain, establish, sponsor, participate in, be bound by or contribute to any International Employee Plan.

2.23                           Insurance.  Section 2.23 of the Disclosure Schedule lists all insurance policies and fidelity bonds covering the assets, business, equipment, properties, operations, Employees, officers and Managers of the Company or any ERISA Affiliate, including the type of coverage, the carrier, the amount of coverage, the term and the annual premiums of such policies.  There is no claim by the Company or any ERISA Affiliate pending under any of such policies or bonds as to which coverage has been questioned, denied or disputed or that the Company or any ERISA Affiliate has a reason to believe will be denied or disputed by the underwriters of such policies or bonds.  There is no pending claim the total value of which (inclusive of defense expenses) will exceed the policy limits.  All premiums due and payable under all such policies and bonds have been paid (or if installment payments are due, will be paid if incurred prior to the Closing Date), and the Company and its ERISA Affiliates are otherwise in material compliance with the terms of such policies and bonds (or other policies and bonds providing substantially similar insurance coverage).  Such policies and bonds (or other policies and bonds providing substantially similar coverage) have been in effect since the respective dates set forth on Section 2.23 of the Disclosure Schedule and remain in full force and effect.  To the Knowledge of the Company, there is no threatened termination of, or pending premium increase with respect to, any of such policies or bonds.  Neither the Company nor any Affiliate of the Company (including any ERISA Affiliate) has ever maintained, established, sponsored, participated in or contributed to any self-insurance plan.

2.24                           Compliance with Laws.  The Company has, since its date of formation, materially complied and is in material compliance with all applicable Laws to which the Company, its properties and

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assets and its business, as currently conducted and as currently contemplated to be conducted, are subject.  The Company has not received any notice of any violation with respect to any applicable Law.

2.25                           Export and Import Control Laws.

(a)                                  The Company has, at all times, conducted its export and import transactions in accordance with all applicable Export and Import Control Laws.  Without limiting the foregoing: (i) the Company is in compliance with the terms of all applicable Export and Import Approvals; (ii) there are no pending or, to the Knowledge of the Company, threatened claims, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other Actions against the Company with respect to any Export and Import Control Laws; (iii) there are no Actions, conditions or circumstances pertaining to the Company’s export or import transactions that may give rise to any future claims, charges, investigations, violations, settlements, civil or criminal actions, lawsuits, or other Actions under the Export and Import Control Laws; and (iv) no approval from a Governmental Entity is required for the transfer of Export and Import Approvals to Parent are required, or such approvals can be obtained expeditiously without material cost.

(b)                                 The Company has established and maintains a compliance program and reasonable internal controls and procedures appropriate to the requirements of Export and Import Control Laws.

(c)                                  Section 2.25(c) of the Disclosure Schedule sets forth the true, correct and complete export control classifications, Harmonized Tariff Schedule Codes, and Schedule B Codes applicable to the Company’s products, services, software and technologies.

2.26                           Anti-Corruption and Anti-Bribery.

(a)                                  The Company (including any of its officers, Managers, agents, Employees, Affiliates or other Person associated with or acting on its behalf) has not, directly or indirectly, used any corporate funds for unlawful contributions, gifts, services of value, entertainment or other unlawful expenses relating to political activity, made or promised to make any unlawful payment or gave or promised to give, anything of value to foreign or domestic Governmental Officials or employees or made, or promised to make any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment, or taken any action that would cause any of them to be in violation of any Anti-Corruption or Anti-Bribery Laws.

(b)                                 There are no pending or, to the Knowledge of the Company, threatened Actions, claims, charges, investigations, violations, settlements, civil or criminal enforcement actions or lawsuits against the Company with respect to any Anti-Corruption and Anti-Bribery Laws.

(c)                                  There are no Actions or, to the Knowledge of the Company, conditions or circumstances pertaining to the Company’s activities that could reasonably be expected to give rise to any future claims, charges, investigations, violations, settlements, civil or criminal actions, lawsuits, or other court actions under any Anti-Corruption and Anti-Bribery Laws.

2.27                           Government Contracts.  The Company has no Government Contracts.

2.28                           Warranties; Indemnities.  Except as otherwise provided in Section 2.14(e)(x) and warranties implied by Law, the Company has not given any warranties or indemnities relating to Company Products and Services or technology sold or rendered by the Company.

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2.29                           Substantial Customers and Suppliers.

(a)                                  Section 2.29(a) of the Disclosure Schedule lists each of the Company’s top 40 customers by yearly revenue for the year ended December 31, 2010.

(b)                                 Section 2.29(b) of the Disclosure Schedule lists, for each of the 25 largest suppliers of the Company on the basis of cost of goods or services purchased for the 12 month period ending on the Current Balance Sheet Date, the suppliers name and the amount of goods or services purchased for the twelve month period ending on the Current Balance Sheet Date.

(c)                                  Except as set forth on Section 2.29(c) of the Disclosure Schedule, no such customer or supplier has (i) ceased or materially reduced its purchases from or sales or provision of services to the Company since the beginning of such twelve month period; (ii) to the Knowledge of the Company, threatened to cease or materially reduce such purchases or sales or provision of services; (iii) to the Knowledge of the Company, been threatened with bankruptcy or insolvency; or (iv) to the Knowledge of the Company, has a dispute or claim with the Company or any reasonable basis therefor.

2.30                           Complete Copies of Materials.  The Company has made available to Parent true, correct and complete copies of each document (or summaries thereof) that has been requested by Parent, including all Contracts and other documents listed on the Disclosure Schedule.

2.31                           Representations Complete.  None of the representations or warranties made by the Company (as modified by the Disclosure Schedule) in this Agreement, and none of the statements made in any exhibit, schedule or certificate furnished by the Company pursuant to this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements contained herein or therein, in the light of the circumstances under which they were made, not misleading.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB

Each of Parent and Merger Sub hereby represents and warrants to the Company that on the date hereof and on and as Closing Date, as though made on and as of the Closing Date, as follows:

3.1                                 Organization and Standing.  Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.  Merger Sub is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.

3.2                                 Authority.  Each of Parent and Merger Sub has all requisite corporate power and authority to enter into this Agreement and any Related Agreements to which it is a party and to consummate the transactions contemplated hereby and thereby.  The execution and delivery by each of Parent and Merger Sub of this Agreement and any Related Agreements to which it is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary corporate action on the part of Parent and Merger Sub.  This Agreement and any Related Agreements to which Parent or Merger Sub is a party has been duly executed and delivered by Parent and Merger Sub, as applicable, and constitutes the valid and binding obligation of Parent and Merger Sub, as applicable, enforceable against Parent and Merger Sub, as applicable, in accordance with their terms.

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3.3                                 No Conflict; Required Filings and Consents.

(a)                                  The execution and delivery by Parent and Merger Sub of this Agreement and each of the other Related Agreements to which it is a party do not, and the performance of this Agreement and each of the other Related Agreements to which it is a party will not, (i) conflict with or violate the certificate of incorporation or bylaws of Parent or the certificate of formation or limited liability company agreement of Merger Sub, or (ii) conflict with or violate in any material respect any Law or Order applicable to Parent or Merger Sub or by which its or any of their respective properties, rights or assets is bound or affected.

(b)                                 The execution and delivery by Parent and Merger Sub of this Agreement do not, and the performance by Parent and Merger Sub of this Agreement shall not, require Parent or Merger Sub to obtain the Approval of, observe any waiting period imposed by, or make any filing with or notification to, any Person or Governmental Entity, except for (i) the filing of the Certificate of Merger in accordance with Delaware Law; (ii) if necessary or required, antitrust filings under the HSR Act or any applicable foreign jurisdictions; (iii) compliance with applicable requirements of the Securities Act of 1933, as amended, and any applicable foreign or state securities or “blue sky” Laws; and (iv) such other consents, authorizations, filings, approvals, notices and registrations that, if not obtained or made, would not prevent, materially alter or materially delay the consummation of any of the transactions contemplated by this Agreement.

3.4                                 Cash Resources.  Parent will have sufficient cash on hand at the Closing to pay the Merger Consideration.

3.5                                 Brokers’ and Finders’ Fees.  Parent has not incurred, nor will it incur, directly or indirectly, any liability for brokerage or finders’ fees or agents’ commissions, fees related to investment banking or similar advisory services or any similar charges in connection with the Agreement or any transaction contemplated hereby, nor will the Company incur, directly or indirectly, any such liability based on arrangements made by or on behalf of Parent.

3.6                                 Litigation.  There are no Actions, suits, proceedings or investigations pending or, to Parent’s knowledge, threatened against Parent or any of its properties before or by any court or arbitrator or any Governmental Entity in which there is a reasonable likelihood (in the judgment of Parent) of an adverse decision that is reasonably likely to impair the ability of Parent to perform in any material respect its obligations under this Agreement or any Related Agreement to which Parent is a party.

ARTICLE IV

CONDUCT PRIOR TO THE EFFECTIVE TIME

4.1                                 Conduct of Business of the Company.  During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, the Company agrees to (i) conduct the business of Company, except to the extent that Parent shall otherwise consent in writing in accordance with Section 4.3, in the ordinary course in substantially the same manner as heretofore conducted; (ii) pay the debts and Taxes of the Company when due (subject to Parent’s review and consent to the filing of any Return as set forth in Section 4.1(f)); (iii) pay or perform other obligations when due; and (iv) use commercially reasonable efforts to (x) preserve intact the present business organizations of the Company, (y) keep available the services of the present officers and Employees and (z) preserve the relationships of the Company with its customers, suppliers, distributors, licensors, licensees and others having business dealings with them, all with the goal of preserving unimpaired the goodwill and ongoing business of the Company at the Effective Time.  The Company

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shall promptly notify Parent of any event or occurrence or emergency not in the ordinary course of business of the Company and any material event involving the Company that arises during the period from the date of this Agreement and continuing until the earlier of the termination date of this Agreement or the Effective Time.  Except as expressly contemplated by this Agreement or as expressly set forth on Section 4.1 of the Disclosure Schedule, the Company shall not, without the prior written consent of Parent in accordance with Section 4.3:

(a)                                  cause or permit any modifications, amendments or changes to the Charter Documents;

(b)                                 organize or establish any subsidiary (whether or not wholly owned) or enter into any new line of business;

(c)                                  except as set forth on Section 4.1(c) of the Disclosure Schedule, undertake any expenditure, transaction or commitment exceeding $10,000 individually or $50,000 in the aggregate, except in the ordinary course of business consistent with past practice, or any commitment or transaction of the type described in Section 2.12;

(d)                                 except as otherwise provided in Section 4.1(n), pay, discharge, waive or satisfy any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), including any Indebtedness, other than the payment, discharge or satisfaction of amounts in the ordinary course of business of liabilities reflected or reserved against on the Current Balance Sheet;

(e)                                  adopt or change accounting methods or practices (including any change in depreciation or amortization policies or rates) other than as required by GAAP;

(f)                                    make or change any material Tax election, change any annual Tax accounting period, adopt or change any Tax accounting method, enter into any Tax closing agreement, settle any Tax claim or assessment, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment, surrender any right to claim a refund of Taxes or file any initial or amended Return inconsistent with past practice;

(g)                                 revalue any of its assets (whether tangible or intangible), including writing down the value of inventory;

(h)                                 (A) declare, set aside or pay any dividends on or make any other distributions (whether in cash, Company Units or other property) in respect of any Company Units; (B) split, combine or reclassify any Company Units; (C) issue or authorize the issuance of any other securities in respect of, in lieu of, in exchange for or in substitution for Company Units; or (D) directly or indirectly repurchase, redeem or otherwise acquire any Company Units (or options, warrants or other rights convertible into, exercisable or exchangeable for Company Units);

(i)                                     Except as set forth on Schedule 4.1(i) of the Disclosure Schedule, increase or otherwise change the salary or other compensation payable or to become payable to any officer, Manager, Employee, Consultant or advisor of the Company, or make any declaration, payment or commitment or obligation of any kind for the payment (whether in cash, equity or other property) of a severance payment, change of control payment, termination payment, bonus or other additional salary or compensation to any such person;

(j)                                     convey, sell, lease, license or otherwise dispose of or grant any security interest in any of its properties or assets, including the sale of any accounts receivable of the Company, except

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properties or assets (whether tangible or intangible) which are not Intellectual Property and only in the ordinary course of business and consistent with past practice;

(k)                                  adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company (other than the Merger);

(l)                                     make any loan to any Person or purchase debt securities of any Person or amend the terms of any outstanding loan agreement, except for advances to Employees for travel and business expenses in the ordinary course of business consistent with past practices;

(m)                               incur any Indebtedness, amend the terms of any outstanding Indebtedness or issue or sell any debt securities or guarantee any debt securities of any Person;

(n)                                 waive or release any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company other than amounts less than $5,000 individually or $25,000 in the aggregate in the ordinary course of business consistent with past practice;

(o)                                 accelerate collection of accounts receivable or change the Company’s credit practices or payment terms or provide discounts or other pricing incentives beyond those granted in the ordinary course of business, consistent with past practice;

(p)                                 commence or settle any Action or proceeding, threat of any Action or proceeding or other investigation by or against the Company or relating to any of its businesses, properties or assets;

(q)                                 issue, grant, deliver or sell or authorize or propose or contract for the issuance, grant, delivery or sale of, or purchase or propose or contract for the purchase of, any Company Units or any securities convertible into, exercisable or exchangeable for, or subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any character obligating any of them to issue or purchase any such shares or other convertible securities, except for the issuance of Company Class C Units pursuant to the exercise of Company Options outstanding on the date of this Agreement;

(r)                                    (A) sell, lease, license or transfer to any Person any rights to any Company Intellectual Property Rights or enter into any agreement or modify or amend any existing agreement with respect to any Company Intellectual Property Rights with any Person or with respect to any Intellectual Property of any Person except in the ordinary course of business consistent with past practice; (B) purchase or license any Intellectual Property or enter into any agreement or modify or amend any existing agreement with respect to the Intellectual Property of any Person; or (C) enter into any agreement or modify or amend any existing agreement with respect to the development of any Intellectual Property with a third party;

(s)                                  except as set forth on Section 4.1(s) of the Disclosure Schedule, enter into or amend any Contract pursuant to which any other party is granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company;

(t)                                    enter into any Contract to purchase or sell any interest in real property, grant any security interest in any real property, enter into any lease, sublease, license or other occupancy agreement with respect to any real property or, except as set forth on Section 4.1(t) of the Disclosure Schedule, alter, amend, modify or terminate any of the terms of any Lease Agreements, or waive any term or condition thereof or grant any consents thereunder;

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(u)                                 grant or otherwise create or consent to the creation of any easement, covenant, restriction, assessment or charge affecting any real property or any part thereof; commit any waste or nuisance on any such property; or make any material changes in the construction or condition of any such property;

(v)                                 except as set forth on Section 4.1(v) of the Disclosure Schedule, terminate, amend or otherwise modify (or agree to do so), or violate the terms of, any of the Contracts set forth or described on the Disclosure Schedule;

(w)                               acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material or any equity securities, individually or in the aggregate, to the business of the Company;

(x)                                   except as set forth on Section 4.1(x) of the Disclosure Schedule, grant any severance, change of control or termination pay (whether payable in cash, equity or otherwise) to any Employee, except pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing to Parent, or adopt any new severance plan, or amend or modify or alter in any respect any severance plan, agreement or arrangement existing on the date hereof;

(y)                                 except as set forth on Section 4.1(y) of the Disclosure Schedule, adopt, amend or terminate any Employee Agreement, Company Employee Plan or employee unit purchase or unit option plan, or enter into any employment contract (other than offer letters and letter agreements entered into, in the ordinary course of business and consistent with past practice, with newly hired employees who are terminable “at will” and who are not officers of the Company and which letters and agreements do not provide for any severance, retention or similar benefits) or collective bargaining agreement, pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee, or increase the salaries or wage rates or fringe benefits (whether payable in cash, equity or otherwise) (including rights to severance or indemnification) of its Employees, except pursuant to agreements outstanding on the date hereof that have been previously been disclosed in writing to Parent;

(z)                                   make any representations or issue any communications to Employees that are inconsistent with this Agreement or the transactions contemplated thereby, including any representations regarding offers of employment from Parent;

(aa)                            enter into any strategic alliance, affiliate agreement or joint marketing arrangement or Contract;

(bb)                          except as set forth on Section 4.1(bb) of the Disclosure Schedule, enter into any Contract that if entered into on or prior to the date hereof would be required to be disclosed in Section 2.15(a)(i) through Section 2.15(a)(xxi), inclusive, of the Disclosure Schedule, or amend any Contract disclosed or required to be disclosed in Section 2.15(a)(i) through Section 2.15(a)(xxi), inclusive, of the Disclosure Schedule;

(cc)                            except as set forth on Section 4.1(cc) of the Disclosure Schedule, waive any stock repurchase rights, accelerate, amend or change the period of exercisability of options or restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or reprice stock options (through amendment, exchange or otherwise) or authorize cash payments or new equity awards in exchange for any stock options, other than as provided by this Agreement;

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(dd)                          except as set forth on Section 4.1(dd) of the Disclosure Schedule, hire, offer to hire or terminate any Employee or encourage or otherwise cause any Employee to resign from the Company;

(ee)                            except as set forth on Section 4.1(ee) of the Disclosure Schedule, promote, demote, terminate or otherwise change the employment status or titles of any Employee;

(ff)                                alter, or enter into any commitment to alter, its interest in any Person in which the Company directly or indirectly holds any interest;

(gg)                          cancel, amend or renew any insurance policy; or

(hh)                          take, commit, or agree in writing or otherwise to take, any of the actions described in Sections 4.1(a) through 4.1(gg), inclusive, or any other action that would (i) prevent the Company from performing, or cause the Company not to perform, its covenants or agreements hereunder, or (ii) cause or result in any of its representations and warranties contained herein being untrue or incorrect.

4.2                                 No Solicitation.

(a)                                  Until the earlier of (i) the Effective Time or (ii) the date of termination of this Agreement pursuant to the provisions of Section 8.1, the Company shall not (nor shall the Company permit, as applicable, any of its officers, Managers, Employees, agents (including its financial, legal, accounting or other advisors), Affiliates, Securityholders or any of their respective representatives to), directly or indirectly, take any of the following actions with any party other than Parent and its designees: (i) solicit, facilitate, encourage, seek, entertain, support, assist, initiate or participate in any inquiry, negotiations or discussions, or enter into any agreement, with respect to any offer or proposal to acquire all or any material part of the business, properties or technologies of the Company or any amount of Company Units (whether or not outstanding), whether by merger, purchase of assets, tender offer, license or otherwise, or effect any such transaction (any such offer, proposal or inquiry, an “Acquisition Proposal”); (ii) disclose any information not customarily disclosed to any Person concerning the business, technologies or properties of the Company, or afford to any Person access to its properties, technologies, books or records not customarily afforded such access; (iii) assist or cooperate, or participate in any discussion, with any Person in connection with an Acquisition Proposal; or (iv) enter into any contract, agreement, binding or nonbinding term sheet, or arrangement with any Person concerning or relating to an Acquisition Proposal.  The Company shall immediately cease and cause to be terminated any such negotiations, discussion or agreements (other than with Parent and its representatives) that are the subject matter of clause (i), (ii), (iii) or (iv) above.  Until the earlier of (A) the Effective Time or (B) the date of termination of this Agreement pursuant to the provisions of Section 8.1, the Company will not waive (and will enforce) the provisions of any confidentiality or other similar agreement, and any “standstill” or other similar agreement, in each case to which the Company is a party.

(b)                                 The Company shall notify Parent promptly (but in no event later than 24 hours) (i) after receipt by the Company or its officers, Managers, Employees, agents (including its financial, legal, accounting or other advisors), Affiliates, Securityholders or their respective representatives of any unsolicited offer, proposal, inquiry, communication or expression of interest regarding a bona fide Acquisition Proposal; (ii) if any of the foregoing Persons engages in any negotiations or discussions relating to an Acquisition Proposal or any modification of or amendment to any Acquisition Proposal; (iii) request for nonpublic information relating to the Company or for access to the properties, books or records of the Company; or (iv) communication or notice by any Person that it is considering making, or has made, an Acquisition Proposal or that could reasonably be expected to lead to an Acquisition

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Proposal.  Such notice to Parent shall be made orally and in writing and shall indicate (A) the identity of the Person making the Acquisition Proposal or intending to make or considering making an Acquisition Proposal or requesting non-public information or access to the books and records of the Company, and (B) a summary of the terms of such bona fide Acquisition Proposal (and a copy thereof, if in writing).  In no event will the Company accept or enter in any Acquisition Proposal prior to the earlier of the Closing Date or the date of termination of this Agreement pursuant to its terms, and the Company agrees that any negotiations in progress as of the date hereof with respect to any Acquisition Proposal will be immediately terminated or suspended.  The Company shall indemnify Parent, its representatives and agents from and against any claims by any party to an Acquisition Proposal based upon or arising out of the discussion or consummation of the transactions contemplated by this Agreement.

(c)                                  The parties hereto agree that irreparable damage would occur in the event that the provisions of this Section 4.2 were not performed in accordance with their specific terms or were otherwise breached.  It is accordingly agreed by the parties hereto that Parent shall be entitled to an immediate injunction or injunctions, without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent breaches of the provisions of this Section 4.2 and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which Parent may be entitled at law or in equity.  Without limiting the foregoing, it is understood that any violation of the restrictions set forth above by any officer, Manager, Employee, agent (including financial, legal, accounting or other advisors), Affiliate, Securityholder of the Company, or any of their representatives, shall be deemed to be a breach of this Agreement by Company.

4.3                                 Procedures for Requesting Parent Consent.  If the Company desires to take or not take any action that would require the written consent of Parent pursuant to Section 4.1, prior to taking or not taking such action, the Company may request such written consent by sending an email or fax to the individuals set forth on Schedule 4.3, or such individual’s designee, and the Company may not take or refrain from taking such action until such consent in writing (which may be by email or fax, with confirmation of receipt) has been received from one of the individuals on Schedule 4.3.  Parent shall acknowledge such request promptly upon receipt and in any event respond to such request within one business day.  If the Company does not receive a response within such period, it may notify Parent again using the procedures set forth above, and if the Company has not received a response within 24 hours of its second request, consent shall be deemed given by Parent for the Company to take or not take such action.  The parties agree that should immediate action be required, they will use their commercially reasonable efforts to reach a decision regarding the consent as soon as possible.

ARTICLE V

ADDITIONAL AGREEMENTS

5.1                                 Reasonable Efforts.  Subject to the terms and conditions provided in this Agreement, each of the parties hereto shall use its reasonable efforts to take promptly, or cause to be taken promptly, all actions, and to do promptly, or cause to be done promptly, all things necessary, proper or advisable under applicable Laws and regulations to (a) consummate and make effective the transactions contemplated hereby, (b) cause all conditions to the obligations of the other parties hereto to effect the Merger to occur, (c) obtain all necessary waivers, consents, approvals and other documents required to be delivered hereunder, and (d) effect all necessary registrations and filings and to remove any injunctions or other impediments or delays, legal or otherwise, in order to consummate and make effective the transactions contemplated by this Agreement for the purpose of securing to the parties hereto the benefits contemplated by this Agreement; provided, however, that Parent shall not be required to agree to (i) any license, sale or other disposition or holding separate (through establishment of a trust or otherwise) of any