AGREEMENT AND PLAN OF MERGER

EXHIBIT 2

Execution Copy

AGREEMENT AND PLAN OF MERGER

among

CHECKFREE CORPORATION,

CFA SOFTWARE CORPORATION

and

CARREKER CORPORATION

Dated as of December 29, 2006

TABLE OF CONTENTS

COMPANY DISCLOSURE SCHEDULE

     AGREEMENT AND PLAN OF MERGER, dated as of December 29, 2006 (this “Agreement”), among CheckFree Corporation, a Delaware corporation (“Parent”), CFA Software Corporation, a Delaware corporation and an indirect, wholly owned subsidiary of Parent (“Merger Sub”), and Carreker Corporation, a Delaware corporation (the “Company”).

     WHEREAS, the Boards of Directors of Parent, Merger Sub and the Company have each approved and declared advisable the merger of Merger Sub with and into the Company (the “Merger”) in accordance with the General Corporation Law of the State of Delaware (the “DGCL”) upon the terms and subject to the conditions set forth herein, whereby each issued and outstanding share of common stock, par value $0.01 per share, of the Company (“Shares”), not owned directly or indirectly by Parent or the Company, will be exchanged for $8.05 in cash (the “Merger Consideration”); and

     NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree as follows:

ARTICLE I
THE MERGER

     Section 1.1 The Merger . Upon the terms and subject to the conditions set forth in Article VII, and in accordance with the DGCL, at the Effective Time (as defined below), Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation of the Merger (the “Surviving Corporation”).

     Section 1.2 Closing; Effective Time . Upon the terms and subject to the conditions set forth in Article VII, the closing of the Merger (the “Closing”) will take place as soon as practicable, but in no event later than three (3) Business Days, after the satisfaction or waiver of the conditions (excluding conditions that, by their nature, cannot be satisfied until the Closing), or such other time and date that the parties agree to in writing. The Closing shall be held at the offices of Locke Liddell & Sapp LLP in Dallas, Texas unless another place is agreed to in writing by the parties hereto. As part of the Closing, the parties hereto shall cause the Merger to be consummated by filing a certificate of merger or certificate of ownership and merger (in either case, the “Certificate of Merger”) with the Secretary of State of the State of Delaware, in such form as is required by, and executed in accordance with, the relevant provisions of the DGCL (the date and time of such filing of the Certificate of Merger, or such later time as may be agreed by each of the parties hereto and specified in the Certificate of Merger, being the “Effective Time”).

     Section 1.3 Effect of the Merger . At the Effective Time, the effect of the Merger shall be as provided in the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions, disabilities and duties of each of the Company and Merger Sub shall become the debts, liabilities, obligations, restrictions, disabilities and duties of the Surviving Corporation.

     Section 1.4 Certificate of Incorporation; By-laws .

          (a) At the Effective Time, the Certificate of Incorporation of the Company shall be amended in the Merger to be identical to the Certificate of Incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that such Certificate of Incorporation shall be amended to provide the name of the Surviving Corporation shall be the name of the Company), and shall be the Certificate of Incorporation of the Surviving Corporation until thereafter amended as provided by Law and such Certificate of Incorporation.

          (b) The By-laws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the By-laws of the Surviving Corporation until thereafter amended as provided by Law, the Certificate of Incorporation of the Surviving Corporation and such By-laws.

     Section 1.5 Directors and Officers . The directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and By-laws of the Surviving Corporation, and the officers of Merger Sub immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, in each case until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal.

ARTICLE II
EFFECT OF THE MERGER ON THE STOCK OF THE CONSTITUENT ENTITIES;
EXCHANGE OF CERTIFICATES

     Section 2.1 Conversion of Securities . 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 any of the following securities

          (a) each Share issued and outstanding immediately prior to the Effective Time (other than any Shares to be canceled pursuant to Section 2.1(b) and any Dissenting Shares (as defined below)) shall be canceled and shall be converted automatically into the right to receive an amount equal to the Merger Consideration payable, without interest, to the holder of such Share, upon surrender, in the manner provided in Section 2.4, of the certificate that formerly evidenced such Share;

          (b) each Share held in the treasury of the Company and each Share owned by Merger Sub, Parent or any direct or indirect subsidiary of Parent or of the Company immediately prior to the Effective Time shall be canceled without any conversion thereof and no payment or distribution shall be made with respect thereto; and

          (c) each share of common stock, par value $0.01 per share, 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, par value $0.01 per share, of the Surviving Corporation.

     Section 2.2 Treatment of Options and Other Equity Awards .

          (a) The Company has awarded stock options and restricted shares under (i) the Company’s Director Stock Option Plan and (ii) the Company’s Third Amended and Restated 1994 Stock Incentive Plan (as amended through the date of this Agreement, collectively referred to as the “Company Stock Plans”). Between the date of this Agreement and the Effective Time, the Company shall take all necessary action (which action shall be effective as of the Effective Time) subject to the terms of Section 2.2(b) to (A) terminate the Company Stock Plans and (B) cancel, as of the Effective Time, each outstanding option to purchase shares of Company Common Stock granted under the Company Stock Plans (each, a “Company Stock Option”) that is outstanding and unexercised, whether or not vested or exercisable, as of such date (in each case, without the creation of additional liability to the Company or any Subsidiary).

          (b) As of the Effective Time, each holder of a Company Stock Option immediately prior to the Effective Time shall be entitled to receive an amount of cash, without interest, equal to the product of (i) the total number of shares of Company Common Stock subject to such Company Stock Option multiplied by (ii) the excess, if any, of the Merger Consideration over the exercise price per share of such Company Stock Option (with the aggregate amount of such payment to the holder to be rounded to the nearest cent), less applicable withholding taxes, if any, required to be withheld with respect to such payment. No holder of a Company Stock Option that has an exercise price per Share that is equal to or greater than the Merger Consideration shall be entitled to any payment with respect to such cancelled Company Stock Option before or after the Effective Time.

          (c) As of the Effective Time, each outstanding share of restricted Company Common Stock granted under the Company Stock Plans (each, a “Company Restricted Stock Award”), the restrictions of which have not lapsed immediately prior to the Effective Time, shall become fully vested and the holder thereof shall be entitled to receive an amount in cash, without interest, equal to the Merger Consideration, less applicable withholding taxes, if any, required to be withheld with respect to such payment.

          (d) If between the date of this Agreement and the Effective Time, the outstanding shares of the Company shall have been increased, decreased, changed into or exchanged for a different number or kind of shares of securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other similar change in capitalization, an appropriate and proportionate adjustment shall be made to the Merger Consideration.

     Section 2.3 Dissenting Shares .

          (a) Notwithstanding any provision of this Agreement to the contrary and to the extent available under the DGCL, Shares that are outstanding immediately prior to the Effective Time and that are held by stockholders who shall have neither voted in favor of the Merger nor consented thereto in writing and who shall have demanded properly in writing appraisal for such Shares in accordance with Section 262 of the DGCL (collectively, the “Dissenting Shares”) shall not be converted into, or represent the right to receive, the Merger Consideration. Such stockholders shall be entitled to receive payment of the appraised value of

3

such Shares held by them in accordance with the provisions of such Section 262, except that all Dissenting Shares held by stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such Shares under such Section 262 shall thereupon be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without any interest thereon, upon surrender, in the manner provided in Section 2.4, of the certificate or certificates that formerly evidenced such Shares.

          (b) The Company shall give Parent (i) prompt notice of any demands for appraisal received by the Company, withdrawals of such demands, and any other instruments served pursuant to the DGCL and received by the Company and (ii) the opportunity to direct all negotiations and proceedings with respect to demands for appraisal under the DGCL. The Company shall not, except with the prior written consent of Parent, make any payment with respect to any demands for appraisal or offer to settle or settle any such demands.

     Section 2.4 Surrender of Shares; Stock Transfer Books .

          (a) Prior to the Effective Time, Merger Sub shall designate a bank or trust company to act as agent (the “Exchange Agent”) for the holders of Shares to receive the funds to which holders of Shares shall become entitled pursuant to Section 2.1(a) and shall deposit with the Exchange Agent cash in an amount sufficient to pay the aggregate Merger Consideration (such cash being hereinafter referred to as the “Exchange Fund”). The Exchange Fund shall be invested by the Exchange Agent as directed by the Surviving Corporation. As soon as reasonably practicable after the Effective Time, the Exchange Agent, pursuant to irrevocable instructions, shall deliver the aggregate Merger Consideration to be paid pursuant to Section 2.1(a) out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose.

          (b) Promptly after the Effective Time, the Surviving Corporation shall cause to be mailed to each person who was, at the Effective Time, a holder of record of Shares entitled to receive the Merger Consideration pursuant to Section 2.1(a) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the certificates evidencing such Shares (the “Certificates”) shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and instructions for use in effecting the surrender of the Certificates pursuant to such letter of transmittal. Upon surrender to the Exchange Agent of a Certificate, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly evidenced by such Certificate, and such Certificate shall then be canceled. No interest shall accrue or be paid on the Merger Consideration payable upon the surrender of any Certificate for the benefit of the holder of such Certificate. If the payment equal to the Merger Consideration is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered

4

holder of the certificate surrendered, or shall have established to the satisfaction of Merger Sub that such taxes either have been paid or are not applicable. If any holder of Shares is unable to surrender such holder’s Certificates because such Certificates have been lost, stolen, mutilated or destroyed, such holder may deliver in lieu thereof an affidavit and indemnity bond in form and substance and with surety reasonably satisfactory to the Surviving Corporation. Each of Parent, Merger Sub, the Surviving Corporation and the Exchange Agent shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement in respect of Shares such amount as it is required to deduct and withhold with respect to the making of such payment under the Code or any applicable Tax Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for purposes of this Agreement as having been paid to the holder of the Shares in respect of which such deduction and withholding was made.

          (c) At any time following the first anniversary of the Effective Time, the Surviving Corporation shall be entitled to require the Exchange Agent to deliver to it any funds which had been made available to the Exchange Agent and not disbursed to holders of Shares (including, without limitation, all interest and other income received by the Exchange Agent in respect of all funds made available to it), and, thereafter, such holders shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar laws) only as general creditors thereof with respect to any Merger Consideration that may be payable upon due surrender of the Certificates held by them. Notwithstanding the foregoing, neither the Surviving Corporation nor the Exchange Agent shall be liable to any holder of a Share for any Merger Consideration delivered in respect of such Share to a public official pursuant to any abandoned property, escheat or other similar law.

          (d) At the close of business on the day of the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of Shares on the records of the Company. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided herein or by applicable Law.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     As an inducement to Parent and Merger Sub to enter into this Agreement, the Company hereby represents and warrants to Parent and Merger Sub that:

     Section 3.1 Organization and Qualification; Subsidiaries .

          (a) Each of the Company and each subsidiary of the Company (each a “Subsidiary”) is a corporation, limited liability company or other entity duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation and has the requisite power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted. Each of the Company and each Subsidiary is duly qualified or licensed as a foreign corporation, limited liability company or limited partnership to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification or licensing necessary, except for such failures to be so

5

qualified or licensed and in good standing that would not have a Company Material Adverse Effect.

          (b) A true and complete list of all the Subsidiaries, together with the jurisdiction of formation of each Subsidiary, the other jurisdictions in which it is authorized to do business, and the percentage of the outstanding equity interests of each Subsidiary owned by the Company, each other Subsidiary and each other holder of equity, is set forth in Section 3.1(b) of the company disclosure schedule (the “Company Disclosure Schedule”). Except as disclosed in Section 3.1(b) of the Company Disclosure Schedule, the Company does not directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for any equity or similar interest in, any corporation, partnership, joint venture or other business association or entity.

     Section 3.2 Certificate of Incorporation and By-laws . The Certificates of Incorporation, By-laws or equivalent organizational documents of the Company and each of its Subsidiaries have been made available to Parent and are in full force and effect. Neither the Company nor any Subsidiary is in violation of any of the provisions of its Certificate of Incorporation or By-laws or equivalent organizational documents.

     Section 3.3 Capitalization .

          (a) The authorized capital stock of the Company consists of (i) 100,000,000 shares of common stock, par value $0.01 per share (“Company Common Stock”) and (ii) 2,000,000 shares of preferred stock, par value $0.01 per share (“Company Preferred Stock”). As of December 19 2006, (i) 24,975,250 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable (of which 770,925 Shares are issued as Company Restricted Stock Awards), (ii) 664,473 Shares are held in the treasury of the Company and (iii) 3,917,235 Shares are reserved for future issuance pursuant to outstanding Company Stock Options and other rights (together with the Company Restricted Stock Awards, the “Company Stock Awards”) granted pursuant to the Company Stock Plans. At the Closing, the aggregate number of issued and outstanding Shares and Shares issuable upon exercise of outstanding Company Stock Options shall be equal to or less than the aggregate number of issued and outstanding Shares and Shares issuable upon exercise of outstanding Company Stock Options set forth above in this Section 3.3(a). As of the date of this Agreement, no shares of Company Preferred Stock are issued and outstanding. Except as set forth in this Section 3.3 or in Section 3.3(a) of the Company Disclosure Schedule, there are no options, warrants or other rights, agreements, arrangements or commitments of any character that are binding on the Company or any Subsidiary and that relate to the issued or unissued capital stock of the Company or any Subsidiary or that obligate the Company or any Subsidiary to issue or sell any shares of capital stock of, or other equity interests in, the Company or any Subsidiary. Section 3.3(a) of the Company Disclosure Schedule sets forth the following information with respect to each Company Stock Award outstanding as of the December 19, 2006: (i) the name of the Company Stock Award recipient; (ii) the number of Shares subject to such Company Stock Award; (iii) the exercise or purchase price of such Company Stock Award; (iv) the date on which such Company Stock Award was granted; and (v) whether the exercisability of or right to repurchase of such Company Stock Award will not be accelerated in any way by the Merger, and indicates the extent of acceleration. All Shares subject to issuance as set forth in this Section 3.3, upon

6

issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any Shares or any capital stock of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. Except as reflected in the Company Stock Plans or as set forth in Section 3.3(a) of the Company Disclosure Schedule, there are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Award as a result of the Merger. All outstanding Shares, all outstanding Company Stock Awards, and all outstanding shares of capital stock of each Subsidiary have been issued and granted in compliance in all respects with (i) all applicable securities laws and other applicable Laws and (ii) all requirements set forth in applicable contracts.

          (b) Each outstanding share of capital stock of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and, except as set forth in Section 3.3(b) to the Company Disclosure Schedule, each share that is owned directly or indirectly by the Company is owned by the Company or another Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s or any Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever.

     Section 3.4 Authority Relative to the Merger . The Company has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Merger. The execution and delivery by the Company of this Agreement and the consummation by the Company of the Merger have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the Merger (other than the approval and adoption of this Agreement by the holders of a majority of the then outstanding shares of Company Common Stock and the filing and recordation of appropriate merger documents as required by the DGCL). This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by the other parties thereto, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity). The Board of Directors of the Company (the “Company Board”), at a meeting duly called and held, has (i) approved, adopted and declared advisable this Agreement and the Merger (such approval and adoption having been made in accordance with the DGCL), (ii) approved the execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby, including the Merger; (iii) determined that this Agreement and the transactions contemplated hereby are in the best interests of the Company and the holders of the Shares, and (iv) resolved, subject to Section 6.4(c), to recommend that the holders of Shares approve and adopt this Agreement and the Merger. No state anti-takeover statute is applicable to the Merger.

     Section 3.5 No Conflict; Required Filings and Consents .

          (a) The execution and delivery by the Company of this Agreement do not, and the performance by the Company of this Agreement will not, (i) conflict with or violate the Certificate of Incorporation or By-laws of the Company or any Subsidiary or (ii) assuming that all consents, approvals, authorizations and other actions described in Section 3.5(b) have been obtained or taken and all filings and obligations described in Section 3.5(b) have been made or fulfilled, conflict with or violate any statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or other order (“Law”) applicable to the Company or any Subsidiary or by which any property or asset of the Company or any Subsidiary is bound or affected.

          (b) Except as set forth in Section 3.5(b) of the Company Disclosure Schedule, the execution and delivery by the Company of this Agreement does not, and the performance by the Company of this Agreement will not, require any material consent, approval, authorization or permit of, or filing with or notification to, any United States federal, state, county or local or non-United States government, governmental, regulatory or administrative authority, agency, instrumentality or commission or any court, tribunal, or judicial or arbitral body (a “Governmental Authority”), except for (i) the pre-merger notification requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”), (ii) any applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and state takeover laws, and (iii) the filing and recordation of appropriate merger documents as required by the DGCL.

     Section 3.6 Permits; Compliance .

          (a) Except as set forth in Section 3.6(a) of the Company Disclosure Schedule, each of the Company and the Subsidiaries is in possession of all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental Authority, in each case that are material to the Company and its Subsidiaries, taken as a whole, necessary for each of the Company or the Subsidiaries to own, lease and operate its properties or to carry on its business as it is now being conducted (the “Company Permits”). No suspension or cancellation of any of the Company Permits is pending or, to the knowledge of the Company, threatened.

          (b) Each of the Company and its Subsidiaries is in compliance in all material respects with (i) all Laws applicable to the Company or each such Subsidiary or by which any property or asset of the Company or each such Subsidiary is bound or affected, or (ii) all notes, bonds, mortgages, indentures, contracts, agreements, leases, licenses, Company Permits, franchises or other instruments or obligations to which the Company or each such Subsidiary is a party or by which the Company or each such Subsidiary or any property or asset of the Company or each such Subsidiary is bound. Except as set forth in Section 3.6(b) of the Company Disclosure Schedule, there are no proceedings pending, or to the knowledge of the Company threatened before or by any Governmental Authority or any pending, or to the knowledge of the Company, threatened inquiries or investigations by any Governmental Authority, with respect to the Company or any of its Subsidiaries.

          (c) None of the Company, any of its Subsidiaries or any director, officer, agent, or employee of the Company or any of its Subsidiaries, has directly or indirectly (i) made any contribution, gift, bribe, rebate, payoff, influence payment, kickback, or other payment to any person, private or public, regardless of form, whether in money, property, or services (A) to obtain favorable treatment in securing business, (B) to pay for favorable treatment for business secured, (C) to obtain special concessions or for special concessions already obtained, for or in respect of the Company or any of its Subsidiaries, or (D) in violation of Laws, or (ii) established or maintained any fund or asset that has not been recorded in the books and records of the Company or its Subsidiaries.

     Section 3.7 SEC Filings; Financial Statements .

          (a) The Company has filed or furnished, as the case may be, all forms, reports and documents required to be filed or furnished by it with the Securities and Exchange Commission (the “SEC”) since January 31, 2004 (such forms, reports and other documents, collectively, the “Company SEC Reports”). The Company SEC Reports (i) were prepared in accordance in all material respects with either the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations promulgated thereunder and (ii) did not, at the time they were filed, or, if amended or supplemented, as of the date of such amendment or supplement, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. There are no outstanding comment letters or requests for information from the SEC with respect to any Company SEC Report. No Subsidiary is required to file any form, report or other document with the SEC.

          (b) Each of the consolidated financial statements (including, in each case, any notes thereto) contained in the Company SEC Reports was prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited interim statements, the omission of footnotes and otherwise as permitted by Form 10-Q of the SEC) and each fairly presents, in all material respects, the consolidated financial position, results of operations and cash flows of the Company and its consolidated Subsidiaries as at the respective dates thereof and for the respective periods indicated therein, except as otherwise noted therein.

          (c) Neither the Company nor any Subsidiary has any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise) that would be required to be reflected, reserved for or disclosed in a consolidated balance sheet of the Company and its consolidated Subsidiaries, including the notes thereto, prepared as of the date of this Agreement in accordance with GAAP and consistent with the consolidated balance sheet of the Company and the consolidated Subsidiaries as at January 31, 2006, including the notes thereto (the “Latest Balance Sheet”), except for (i) liabilities and obligations that are reflected, reserved for or disclosed in the Latest Balance Sheet or in the consolidated balance sheet of the Company and the consolidated Subsidiaries as at October 31, 2006, including the notes thereto, (ii) liabilities and obligations that are incurred in the ordinary course of business consistent with past practice since January 31, 2006, (iii) liabilities and obligations that have not had, or which would not

9

reasonably be expected to have either individually or in the aggregate a Company Material Adverse Effect, or (iv) as set forth in Section 3.7(c) of the Company Disclosure Schedule.

          (d) The Company has timely filed all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) with respect to any Company SEC Report. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are designed to ensure and are effective to provide reasonable assurance that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the Company’s SEC filings and other public disclosure documents. As used in this Section 3.7, the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.

          (e) The Company has disclosed, based on prior evaluations of such disclosure controls and procedures prior to the date hereof, to the Company’s auditors and the audit committee of the Company Board (i) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that could adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information, and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. The Company has made available to Parent a summary of any such disclosure by management to the Company’s auditors and audit committee since the Latest Balance Sheet.

          (f) The Company has never incurred and does not reasonably expect to incur a charge to earnings due to the failure to report in the appropriate fiscal period the expense related to the issuance of a stock option with an exercise price lower than the fair market value of the underlying stock at the date of grant. The Company does not have any program or practice in place to (i) time stock option grants to employees or directors with the release of material non-public information in a manner intended to improperly favor employees or directors or (ii) set the exercise prices in coordination with such release in a manner intended to improperly favor employees or directors.

     Section 3.8 Absence of Certain Changes or Events . Since October 31, 2006, except as set forth in Section 3.8 of the Company Disclosure Schedule, or as expressly contemplated by this Agreement, (a) the Company and the Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent with past practice, (b) there has not been any Company Material Adverse Effect, and (c) none of the Company or any Subsidiary has taken any action that, if taken after the date of this Agreement, would constitute a breach of any of the covenants set forth in Section 5.1.

     Section 3.9 Absence of Litigation . Except as set forth in the Company SEC Reports or in Section 3.9 of the Company Disclosure Schedule, there is no litigation, suit, claim, action, proceeding or investigation (which investigation has been communicated to the Company or of which the Company has knowledge) (an “Action”) pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary, or any property or asset of the Company or any Subsidiary, before any Governmental Authority. Except as set forth in Section

3.9 of the Company Disclosure Schedule, neither the Company nor any Subsidiary nor any property or asset of the Company or any Subsidiary is subject to any continuing order of, consent decree, settlement agreement or other similar written agreement (an “Order”) with, or, to the knowledge of the Company, continuing investigation by, any Governmental Authority, or any order, writ, judgment, injunction, decree, determination or award of any Governmental Authority.

     Section 3.10 Employee Benefit Plans .

          (a) Section 3.10(a) of the Company Disclosure Schedule lists all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and all bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all employment, retention, termination, severance or other contracts or agreements, whether legally enforceable or not, to which the Company or any organization or other entity with whom the Company is or was treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or Section 4001(a)(14) or (b)(1) of ERISA (“ERISA Affiliate”) is a party, with respect to which the Company or any ERISA Affiliate has any obligation or which are or within the six years prior to the date upon which the transactions contemplated in this Agreement will close, have been maintained, contributed to or sponsored by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer or director of the Company or any ERISA Affiliate (collectively, the “Plans”). Except as disclosed in Section 3.10(a) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate has any express or implied commitment, whether legally enforceable or not, (i) to create, incur liability with respect to or cause to exist any Plan, other employee benefit plan, program or arrangement, (ii) to enter into any contract or agreement to provide compensation or benefits to any individual, or (iii) to modify, change or terminate any Plan, other than with respect to a modification, change or termination required by this Agreement, the Merger, ERISA, the Code or to otherwise comply with applicable Laws. The Company has expressly reserved its right to amend or terminate each Plan.

          (b) Neither the Company nor any ERISA Affiliate (including any entity that during the past six years was a ERISA Affiliate) has now or at any time contributed to, sponsored, or maintained (i) a pension plan (within the meaning of Section 3(2) of ERISA) subject to Section 412 of the Code or Title IV of ERISA, (ii) a multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a “Multiemployer Plan”), or (iii) a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which the Company or any ERISA Affiliate could incur liability under Section 4063 or 4064 of ERISA (a “Multiple Employer Plan”). No condition exists and no event has occurred that could constitute grounds for termination of any Plan, and neither the Company nor any ERISA Affiliate has incurred, or reasonably expect to incur, any material liability under Title IV of ERISA arising in connection with the termination of, or complete or partial withdrawal from, any plan covered or previously covered by Title IV of ERISA. No “accumulated funding deficiency,” as defined in Section 412 of the Code, has been incurred with respect to any Employee Plan, whether or not waived. No “reportable event,” within the meaning of Section 4043 of ERISA, and no event described in Section 4041, 4042, 4062 or 4063 of ERISA has occurred in connection with any

11

Employee Plan. Except as disclosed in Section 3.10(b) of the Company Disclosure Schedule, no Plan exists that (A) provides for the payment of separation, severance, termination or similar-type benefits to any person, (B) obligates the Company or any ERISA Affiliate to pay separation, severance, termination or similar-type benefits solely or partially as a result of any transaction contemplated by this Agreement, or (C) could result in the payment to any present or former employee, director or consultant of the Company or any ERISA Affiliate of any money or other property or accelerate or provide any other special vesting or other rights or benefits to any current or former employee of the Company or any ERISA Affiliate as a result of the consummation of the Merger (whether alone or in connection with any subsequent event). Except as disclosed in Section 3.10(b) of the Company Disclosure Schedule, there is no contract, plan or arrangement covering any current or former employee of the Company or any ERISA Affiliate that, individually or collectively, could give rise to the payment of any amount that would not be deductible, including without limitation, pursuant to the terms of Section 280G of the Code. Except to the extent required under ERISA Section 601 et. seq . and Code Section 4980B, none of the Plans provides for or promises medical, group health, disability or retiree life insurance benefits for a period following retirement or other termination of employment to any current or former employee, officer or director of the Company or any ERISA Affiliate. Except as disclosed in Section 3.10(b) of the Company Disclosure Schedule, each of the Plans is subject only to the Laws of the United States or a political subdivision thereof.

          (c) Except as disclosed in Section 3.10(c) of the Company Disclosure Schedule, each Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws including, without limitation, ERISA and the Code. Except as disclosed in Section 3.10(c) of the Company Disclosure Schedule, the Company and the Subsidiaries have performed all material obligations required to be performed by them under, and are not in default in any material respect under or in violation of any Plan. No Action is pending or, to the knowledge of the Company, threatened with respect to any Plan (other than routine claims for benefits in the ordinary course) and except as disclosed in Section 3.10(c) of the Company Disclosure Schedule, none of the Company or its Subsidiaries have any knowledge of any fact or event that could reasonably be expected to give rise to any such Action. Except as disclosed in Section 3.10(c) of the Company Disclosure Schedule, no material operational or plan failure (within the meaning of Rev. Proc. 2003-44) exists with respect to any Plan that is intended to be qualified under Section 401(a) of the Code.

          (d) Each Plan that is intended to be qualified under Section 401(a) of the Code has timely received a favorable determination letter or prototype opinion letter upon which the plan sponsor is entitled to rely from the Internal Revenue Service (the “IRS”) that the Plan is so qualified and each trust established in connection with any Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and no fact or event exists that could reasonably be expected to result in the revocation of such qualification or exemption.

          (e) None of the Company or its Subsidiaries has any knowledge of any prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to any Plan.

          (f) All contributions, premiums or payments required to be made with respect to any Plan have been made on or before their due dates. All such contributions have been fully deducted for income tax purposes and no such deduction has been challenged or disallowed by any Governmental Authority and, to the knowledge of the Company, no fact or event exists which could reasonably be expected to give rise to any such challenge or disallowance. All contributions and contribution obligations have been reflected on the most recent financial statements of the Company included in the Company SEC Reports.

          (g) The Company and the Subsidiaries are in compliance with the requirements of the Workers Adjustment and Retraining Notification Act and any similar state or local law (the “WARN Act”) and have no liabilities pursuant to the WARN Act determined without regard to any terminations of employment that occur on or after the Effective Time. Except as set forth in Section 3.10(g) of the Company Disclosure Schedule, the Company has complied with all reporting and disclosure obligation to all Governmental Authority and all participants and beneficiaries with respect to each Plan required by the terms of such Plan and any statutes, orders, rules or regulations, including but not limited to ERISA, the Code and the Sarbanes-Oxley Act of 2002.

          (h) Except as set forth in Schedule 3.10(b) of the Company Disclosure Schedule, with respect to the Plans which are “group health plans” under Section 4980B of the Code or Section 607(1) of ERISA, there has been timely compliance in all material respects with all requirements imposed under Section 4980(B) of the Code and Part 6 of Title 1 of ERISA, so that neither the Company nor any of its ERISA Affiliates has any (and will not incur any) loss, assessment, tax penalty, or other sanction with respect to any such Plan. Except as set forth in Schedule 3.10(b) of the Company Disclosure Schedule, with respect to the Company’s Plans which are “group health plans” under Section 9832 of the Code or Section 733 of ERISA, such Plans have been maintained in compliance in all material respects with all requirements imposed under Subtitle K of the Code and Part 7 of Title 1 of ERISA, so that neither the Company nor any of its ERISA Affiliates has any (and will not incur any) loss, assessment, tax penalty, or other sanction with respect to any Plan. Except as set forth in Schedule 3.10(b) of the Company Disclosure Schedule, if the Company or any of its Plans are treated as a “covered entity” under the Privacy and Security Standards at 45 CFR Parts 160 through 164, such covered entities have complied in all material respects with such standards beginning with the effective date of such standards to such covered entities.

          (i) The Company and all ERISA Affiliates have complied with Code Section 409A, including all transitional guidance from the Internal Revenue Service, with respect to any interest granted or awarded pursuant to a Plan that is a nonqualified deferred compensation plan (as defined in Code Section 409A(d)(1)), and no person had a legally binding right to an amount under such a nonqualified deferred compensation plan, which would subject such person to the taxes imposed by Code Section 409A.

          (j) In addition to the foregoing, with respect to each Plan listed in Section 3.10(a) of the Company Disclosure Schedule that is not subject to United States law (a “Non-U.S. Benefit Plan”), and except as disclosed in Section 3.10(h) of the Company Disclosure Schedule:

     (i) all employer and employee contributions to each Non-U.S. Benefit Plan required by law or by the terms of such Non-U.S. Benefit Plan or under any agreement between such employer and employee relating thereto have been made, or, if applicable, accrued in accordance with normal accounting practices;

     (ii) the fair market value of the assets of each funded Non-U.S. Benefit Plan, the liability of each insurer for any Non-U.S. Benefit Plan funded through insurance or the book reserve established for any Non-U.S. Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the benefits determined as if such plan is maintained on an ongoing basis (actual or contingent) accrued to the date of this Agreement with respect to all current and former participants under such Non-U.S. Benefit Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Non-U.S. Benefit Plan, and no Transaction shall cause such assets or insurance obligations to be less than such benefit obligations; and

     (iii) each Non-U.S. Benefit Plan maintained by the Company or any Subsidiary required to be registered or approved has been registered or approved and has been maintained and administered in good standing with applicable regulatory authorities. Each Non-U.S. Benefit Plan has been operated in material compliance with all applicable non-United States Laws.

     (iv) The Company or a Subsidiary may unilaterally amend or terminate any Non-U.S. Benefit Plan (subject to the requirements of applicable Laws) and no commitments to improve or otherwise amend any Non-U.S. Benefit Plan has been made.

     (v) Except as set forth in Section 3.10(b) of the Company Disclosure Schedule, no Non-U.S. Benefit Plan exists that could result in (A) the payment to any employee or former employee of any money or other remuneration; (B) accelerated or increased funding requirements for any Non-U.S. Benefit Plan; or (C) the acceleration or provision of any increased rights or benefits to any employee as a result of the transactions contemplated by this Agreement. A

     (vi) Except as set forth in Section 3.10(b) of the Company Disclosure Schedule, no employee whose employment is governed by the laws of a country other than the U.S. has any agreement as to length of notice or severance pay required to terminate his employment except as results from the application of relevant laws.

     (vii) There have been no resignations or redundancy dismissals or, to the knowledge of the Company, any threats of resignation, of any of the employees employed in France by the Company and any of its Subsidiaries (the French Employees”) (A) that have occurred in the six (6) months prior to the date hereof or (B) that will have occurred from the date hereof through the Closing that would be reasonably expected to materially and adversely affect the business of the Company and its Subsidiaries. There is no written or oral employment agreement with French Employees which may not be terminated by the Company by the giving of three months’ notice or less, or which may give rise to any indemnity payment payable by the Company or any of its Subsidiaries

(other than those provided by the applicable statute, regulations and any collective bargaining agreement). The Company has complied in all material respects with mandatory statutory provisions, regulations, collective agreements, collective accords and judicial decisions concerning working conditions or relations between the Company and its French Employees or any related representative trade union. The Company pays no moneys in the way of salary to persons who do not perform any real work for the Company. With respect to the French Employees, the Company has no optional retirement plan and has set up no system of participation, intéressement, épargne entreprise, agreement to sell or purchase securities, bonuses or commissions in favor of all or any of its employees, except as provided under mandatory employee participation schemes pursuant to statute and regulations. With respect to the French Employees, the Company has not been found liable in respect of the performance or termination of any contract of employment for a period of five (5) years, and the Company has no procedure relating to collective redundancy dismissals for economic reasons. The Company has complied in all material respects with statutory and regulatory provisions relating to employee representative bodies and union sections for its French Employees. As of the date of this Agreement, no significant industrial dispute that would be reasonably expected to materially and adversely affect the business of the Company and its Subsidiaries has occurred concerning the French Employees in the course of the last two (2) years and, as of Closing, no such matter has occurred and remains uncured.

     Section 3.11 Labor and Employment Matters .

          (a) Section 3.11(a) of the Company Disclosure Schedule lists each employee of the Company and the Subsidiaries as of December 15, 2006 and each such employee’s current compensation as of such date and designates as of such date each such employee by the correct employer, job title and business division for which the employee primarily performs services, whether such employee is on leave of absence or layoff status, each employee’s vacation accrual, and each employee’s service crediting date for purposes of vesting and eligibility in its Employee Benefit Plans.

          (b) Except as set forth in Section 3.11(b) of the Company Disclosure Schedule, neither the Company nor any Subsidiary is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by the Company or any Subsidiary, nor, to the knowledge of the Company, are there any activities or proceedings of any labor union to organize any such employees. As of the date hereof, there are no unfair labor practice complaints pending against the Company or any Subsidiary before the National Labor Relations Board or any other Governmental Authority or any current union representation questions involving employees of the Company or any Subsidiary. As of the date hereof, there is no strike, controversy, slowdown, work stoppage or lockout occurring, or, to the knowledge of the Company, any threat thereof in writing, by or with respect to any employees of the Company or any Subsidiary.

          (c) The Company and its Subsidiaries are in compliance in all material respects with all applicable Laws relating to the employment of labor, including those related to wages, hours, immigration and naturalization, collective bargaining and the payment and withholding of taxes and other sums as required by the appropriate Governmental Authority and

15

have withheld and paid to the appropriate Governmental Authority or are holding for payment not yet due to such Governmental Authority all amounts required to be withheld from employees of the Company or any Subsidiary and are not liable for any arrears of wages, taxes, penalties or other sums for failure to comply with any of the foregoing. Neither the Company nor any Subsidiary is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Authority relating to employees or employment practices. Except as disclosed in Section 3.11(c) of the Company Disclosure Schedule, there is no charge or proceeding with respect to a violation of any occupational safety or health standards asserted or pending with respect to the Company. Except as disclosed in Section 3.11(c) of the Company Disclosure Schedule, there is no charge of discrimination in employment or employment practices, for any reason, including, without limitation, age, gender, race, religion or other legally protected category, which was asserted since January 1, 2006 or which, if asserted prior to January 1, 2006, remains unresolved or pending before the United States Equal Employment Opportunity Commission, or any other Governmental Authority in any jurisdiction in which the Company or any Subsidiary has employed or employ any person.

     Section 3.12 Intellectual Property .

          (a) Section 3.12(a)(i) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of all (i) patents and patent applications in any jurisdiction, (ii) registrations and applications for registration of trademarks in any jurisdiction, unregistered trademarks used in connection with the business of the Company and any of its Subsidiaries as currently conducted and trademark registrations which have been abandoned in any jurisdiction, (iii) registrations and applications for registration of copyrights in any jurisdiction, (iv) domain name registrations in any jurisdiction, (v) all patentable inventions that have not yet become the subject of a patent application, but for which Company intends to file a patent application, in each case, with respect to the foregoing in subsections (i) through (v), as included in the definition of Owned Intellectual Property. Section 3.12(a)(ii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of all Licensed Intellectual Property and, for each item of Licensed Intellectual Property embedded in any Products, identifies the parties to which the Company or any of its Subsidiaries, as applicable, have currently effective agreements under which such Licensed Intellectual Property is licensed to Company or a Subsidiary, information regarding termination, expiration and renewal of such agreements, and any royalties or fees payable in the future or on a recurring basis for such licenses to such Licensed Intellectual Property. Section 3.12(a)(i) of the Company Disclosure Schedule lists the jurisdictions in which each such item of Owned Intellectual Property has been issued or registered or in which any such application for such issuance and or registration has been filed. No Owned Intellectual Property is involved in any interference, reissue, reexamination, opposition or cancellation proceeding. All filing, examination, issuance, post registration and maintenance fees, annuities and the like presently required with respect to any of the Owned Intellectual Property have been paid. Except as set forth in Section 3.12(a)(i) or (ii) of the Company Disclosure Schedules, the Company and its Subsidiaries are not required, obligated, or under any liability whatsoever, to make any payments by way of royalties, fees or otherwise to any owner, licensor of, or other claimant to any Owned Intellectual Property, Licensed Intellectual Property embedded in any Products, or other third party, with respect to its and their use thereof or in connection with the conduct of the Company’s and Subsidiaries’ business as currently conducted; provided, however, that this sentence shall not apply to any

16

such requirement, liability or obligation incurred after the date of this Agreement by the Company or any of its Subsidiaries in the ordinary course of business and consistent with past practice so long as the Company provides prompt written notice to Parent and Merger Sub of the incurrence by the Company or any of its Subsidiaries of such requirement, liability or obligation. For purposes of any Intellectual Property Licenses between Company or a Subsidiary and any of the parties identified in Section 3.12(a)(ii) of the Company Disclosure Schedules, no party identified in Section 3.12(a)(ii) to the Company Disclosure Schedule pursuant to which Company or a Subsidiary licenses or is provided any Licensed Intellectual Property as currently used in the ordinary course of Company’s or any Subsidiary’s business as presently conducted or as contemplated to be conducted (including, without limitation, Licensed Intellectual Property embedded in any Products) or that Company or a Subsidiary has licensed or granted a third party to use such Licensed Intellectual Property has issued a written notice of termination or non-renewal which remains uncured or has terminated or non-renewed such agreement since December 21, 2005 and all other information provided in Section 3.12(a)(ii) of the Company Disclosure Statements is accurate in all material respects.

          (b) The Company or a Subsidiary (i) except as set forth in Section 3.12(b)(i) of the Company Disclosure Schedules, is the exclusive owner of all right, title and interest in and to all material Owned Intellectual Property (including, without limitation, all Intellectual Property related to the Products and Services), free and clear of any liens and (ii) except as set forth in Section 3.12(b)(ii) of the Company Disclosure Schedules, has a valid and continuing right to use all material Licensed Intellectual Property as currently used and licensed in the ordinary course of their business as presently conducted or as contemplated to be conducted or as Company or a Subsidiary has licensed or granted a third party to use such Licensed Intellectual Property. Except as set forth in Section 3.12(b)(i) and (ii) of the Company Disclosure Schedule, (1) all material Owned Intellectual Property and all Intellectual Property Licenses for any material Licensed Intellectual Property (including, without limitation, such Licensed Intellectual Property embedded in any Products) are subsisting, valid, and enforceable, and (2) neither Company nor any Subsidiary is in material breach or default of its obligations under any third party license or other agreement with Company or a Subsidiary related to any Licensed Intellectual Property, including, without limitation, all restrictions required by the owner or licensor of such Licensed Intellectual Property for Company’s or a Subsidiary’s sublicense of such Licensed Intellectual Property. For purposes of any Intellectual Property Licenses related to Licensed Intellectual Property embedded in any Products, (1) no such Intellectual Property Licenses are subject to unilateral non-renewal by a party identified in Section 3.12(a)(ii) of the Company Disclosure Schedules within 180 days of the date of execution of this Agreement, and (2) there are no material restrictive covenants in such Intellectual Property Licenses other than those that restrict the use of the Licensed Intellectual Property (including, without limitation, any covenants of non-competition). Within 30 days of the execution of this Agreement, Company shall make available to Parent all Intellectual Property Licenses applicable to all Licensed Intellectual Property. Section 3.12(b)(iii) of the Company Disclosure Schedule sets forth a true and complete list as of the date of this Agreement of all parties to which the Company or any of its Subsidiaries, as applicable, have currently effective agreements pursuant to which Company or a Subsidiary has granted a third party a right or license to sublicense, distribute, resell, or provide any Owned Intellectual Property or Licensed Intellectual Property to unaffiliated third parties or has granted a right or license to act as a service bureau or outsource services provider for unaffiliated third parties using any Owned Intellectual Property or Licensed Intellectual

17

Property or has granted any exclusive licenses related to the Owned Intellectual Property or Licensed Intellectual Property. Except as set forth in Section 3.12(b)(iii) of the Company Disclosure Schedules,(1) no customer or licensee of the Company or its Subsidiaries has any rights in any Owned Intellectual Property (or any improvements thereto owned by Company or its Subsidiaries) or Licensed Intellectual Property other than the non-exclusive, limited licenses of certain Owned Intellectual Property or Licensed Intellectual Property, (2) neither Company nor any of its Subsidiaries have currently effective agreements pursuant to which Company or a Subsidiary has granted a third party a right or license to sublicense, distribute, resell, or provide any Owned Intellectual Property or Licensed Intellectual Property to unaffiliated third parties or has granted a right or license to act as a service bureau or outsource services provider for unaffiliated third parties using any Owned Intellectual Property or Licensed Intellectual Property or has granted any exclusive licenses related to the Owned Intellectual Property or Licensed Intellectual Property, and (3) the none of the agreements with the parties identified in Section 3.12(b)(iii) has any obligations by Company or any Subsidiary not to compete with such party and contains terms. Within 30 days of the execution of this Agreement, Company shall make available to Parent all agreements with any parties identified in Section 3.12(b)(iii) of the Company Disclosure Schedules.

          (c) The conduct by the Company and the Subsidiaries of their business as currently conducted, the use of the Owned Intellectual Property and Licensed Intellectual Property in connection therewith, the Company’s and its Subsidiaries’ current business practices, and the manufacturing, licensing, marketing, importation, offer for sale, sale or use of any Products or Services do not conflict with, infringe, misappropriate or otherwise violate in any material respect the Intellectual Property rights of any third party. Except as disclosed in Section 3.12(c) of the Company Disclosure Schedule, no Actions have been asserted or are pending or, to the Company’s knowledge, threatened against the Company or any Subsidiary (i) based upon or challenging or seeking to deny or restrict the use by the Company or any Subsidiary of any of the Owned Intellectual Property or Licensed Intellectual Property, (ii) alleging that any services provided by, processes used by, or products manufactured or sold by the Company or any Subsidiary, or any use of the Owned Intellectual Property or Licensed Intellectual Property infringe, misappropriate or otherwise violate the intellectual property rights or contractual rights of any third party, or (iii) alleging that the Licensed Intellectual Property is being licensed or sublicensed by the Company or any of its Subsidiaries in conflict with the terms of any license or other agreement. Except as disclosed in Section 3.12(c) of the Company Disclosure Schedule, no Owned Intellectual Property or Licensed Intellectual Property is subject to any outstanding decree, order, injunction, judgment or ruling restricting the use of such Intellectual Property or that would impair the validity or enforceability of such Intellectual Property.

          (d) To the knowledge of the Company, except as disclosed in Section 3.12(d) of the Company Disclosure Schedule, no third party is engaging in any activity that infringes, violates, misuses or misappropriates any of the Owned Intellectual Property, and the Company and its Subsidiaries have not made any such claim against any person (including its and their employees and contractors and former employees and contractors).

          (e) The Owned Intellectual Property and the Licensed Intellectual Property constitute all of the Intellectual Property used or held for use in the conduct of the business of the Company and the Subsidiaries as presently conducted, and there are no other material items of

18

Intellectual Property that are used in the conduct of the business of the Company and the Subsidiaries as presently conducted. Except as disclosed in Section 3.12(e) of the Company Disclosure Schedule, the consummation of the Merger will not result in the termination or impairment of any of the Owned Intellectual Property or the right to use any of the Licensed Intellectual Property or require the payment of additional royalties or fees to third parties for the continued use of the Licensed Intellectual Property as currently conducted by the Company and the Subsidiaries.

          (f) The Company and the Subsidiaries have used reasonable commercial efforts to maintain the confidentiality of the trade secrets and other confidential Intellectual Property used or held for use by the Company or the Subsidiaries, including, without limitation, the Owned Intellectual Property, source code, customer lists, prospect lists and marketing and business plans, and any other confidential information. Except as set forth on Section 3.12(f) of the Company Disclosure Schedule, to the Company’s knowledge, there have been no material wrongful disclosures by the Company or any Subsidiary, or any current or former employee thereof, of any trade secrets and other confidential Intellectual Property used or held for use by the Company or the Subsidiaries. Without limiting the generality of the foregoing, the Company and the Subsidiaries use a business practice of enforcing a policy requiring all personnel and third parties having access to such trade secrets or ot