AGREEMENT AND PLAN OF MERGER

Agreement and Plan of Merger

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DG ACQUISITION CORP | DG FASTCHANNEL, Inc | PATHFIRE, INC | PFIRE ESCROW, INC

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Title: AGREEMENT AND PLAN OF MERGER
Governing Law: Georgia Date: 4/25/2007
Law Firm: Kilpatrick Stockton;Latham Watkins

AGREEMENT AND PLAN OF MERGER, Parties: dg acquisition corp , dg fastchannel inc , pathfire inc , pfire escrow inc

Exhibit 2.1

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

among

DG FASTCHANNEL, Inc.,

DG ACQUISITION CORP. V,

PATHFIRE, INC.,

and

PFIRE ESCROW, INC.,

as Shareholders’ Representative

Dated as of April 24, 2007

TABLE OF CONTENTS

Section		Page

ARTICLE I
THE MERGER

1.01.	The Merger		1
1.02.	Effects of the Merger		2
1.03.	Effective Time		2
1.04.	Articles of Incorporation and Bylaws		2
1.05.	Directors and Officers		2
1.06.	The Closing		2

ARTICLE II
CONVERSION OF SECURITIES

2.01.	Effect on Shares		3
2.02.	Treatment of Company Options and Company Warrants		5
2.03.	Payments at Closing		5
2.04.	Surrender of Certificates		7
2.05.	Allocation of Net Closing Merger Consideration		9

ARTICLE III
REPRESENTATIONS AND WARRANTIES

3.01.	Representations and Warranties of the Company		10
3.02.	Representations and Warranties of Parent and Merger Sub		30

ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS

4.01.	Conduct of Business		31
4.02.	No Solicitation		35

ARTICLE V
ADDITIONAL AGREEMENTS

5.01.	Shareholder Approval		36
5.02.	Access to Information; Confidentiality		37
5.03.	Cooperation		38
5.04.	Merger Sub Compliance		39
5.05.	Indemnification, Advancement of Expenses, Exculpation and Insurance		39
5.06.	Fees and Expenses		40
5.07.	Employee Matters		41
5.08.	Public Announcements		42

5.09.	Disclosure Supplements	42
5.10.	Solvency After Closing	42
5.11.	Delivery of Financial Statements	43
5.12	Parent Financing	44
5.13	Pending Proceeding	44
5.14	Tax Matters	44
5.15	Surrender of FCC License	46

ARTICLE VI
CONDITIONS PRECEDENT

6.01.	Conditions to Each Party’s Obligation to Effect the Merger	46
6.02.	Conditions to Obligations of Parent and Merger Sub	47
6.03.	Conditions to Obligation of the Company	48

ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER

7.01.	Termination	49
7.02.	Effect of Termination	50
7.03.	Amendment	50
7.04.	Extension; Waiver	51
7.05.	Procedure for Termination or Amendment	51

ARTICLE VIII
SURVIVAL AND INDEMNIFICATION

8.01.	Survival of Representations, Warranties and Covenants	51
8.02.	Indemnification by the Company Indemnifying Parties	51
8.03.	Indemnification by Parent	52
8.04.	Limits on Indemnification	52
8.05.	Notice of Claims	52
8.06.	Third Party Claims	53
8.07.	Calculation of Losses	54
8.08.	Exclusive Remedy	55
8.09.	Shareholders’ Representative	56

ARTICLE IX
DEFINITIONS; INTERPRETATION

9.01.	Certain Defined Terms	59
9.02.	Interpretation	67

ARTICLE X
MISCELLANEOUS

10.01.	Notices	67
10.02.	Consents and Approvals	69
10.03.	Counterparts	69
10.04.	Entire Agreement; No Third-Party Beneficiaries	69
10.05.	Governing Law	69
10.06.	Assignment	69
10.07.	Consent to Jurisdiction	70
10.08.	Enforcement	70
10.09.	Severability	70

Exhibits:

Exhibit A		Form of Articles of Incorporation and Bylaws
Exhibit B		Escrow Agreement

Schedules:

Schedule 2.01(a)(iv)		Per Share Consideration
Schedule 2.03(b)(iii)		Closing Debt
Schedule 2.05		Preliminary Allocation Schedule
Schedule 9.01(C)		Specified Shareholders
Company Disclosure Schedules

iii

INDEX OF DEFINED TERMS

Term		Section

2006 Audited Financial Information		5.11(b)
Acquisition		3.01(v)
Acquisition Proposal		4.02
Action		9.01
Affiliate		9.01
Agreement		Preamble
Assets		3.01(s)
Audited Financial Statements		3.01(j)(i)
Balance Sheet Date		3.01(h)(i)
Board		3.01(d)
Business		9.01
Business Day		9.01
Bylaws		1.04(b)
Certificate		2.04(b)
Certificate of Merger		1.03
Change of Recommendation		4.02
Charter		1.04(a)
Claim		5.05(b)
Claim Notice		8.05(a)
Closing		1.06
Closing Date		1.06
Closing Debt		2.01(a)
Code		9.01
Common Shares		9.01
Common Stock		3.01(e)(i)
Common Stock Options		3.01(e)(ii)
Common Stock Plan		3.01(e)(ii)
Common Warrants		3.01(e)(ii)
Company		Preamble
Company Balance Sheet		3.01(h)
Company Benefit Agreement		9.01
Company Bylaws		3.01(c)
Company Charter		3.01(c)
Company Disclosure Schedule		3.01
Company Employees		5.07(a)
Company Financial Statements		3.01(h)(i)
Company Hardware		9.01
Company Indemnified Party		8.03
Company Indemnifying Parties		2.03(a)
Company Licensed Intellectual Property		9.01

Company Licensee Agreements		3.01(k)(iv)
Company Licensor Agreements		3.01(k)(iv)
Company Options		3.01(e)(iii)
Company Owned Intellectual Property		9.01
Company Shareholder Meeting		Recitals
Company Shareholders		9.01
Company Shares		9.01
Company Stock Plans		3.01(e)(iii)
Company Warrants		9.01
Confidentiality Agreement		5.02
Contract		9.01
Copyrights		9.01
Deductible Amount		9.01
Delegees		8.09(a)
Director		9.01
Disclosure Document		5.01
Dispute Notice		8.05(b)
Dissenting Shares		2.01(d)
Effective Time		1.03
EM Stock Options		9.01
Employee Plans		3.01(p)
Environmental Claim		9.01
Environmental Laws		9.01
ERISA		9.01
ERISA Affiliate		3.01(p)
Escrow Account		2.03(a)
Escrow Agent		9.01
Escrow Agreement		2.03(a)
Escrow Amount		2.01(a)(i)
Exchange Act		9.01
Exchange Fund		2.04(a)
Expenses		9.01
FCC		5.15
FCC License		5.15
Final Allocation Schedule		2.05
Final Escrow Release Date		2.03(a)
First Escrow Release Date		2.03(a)
Funded Indebtedness		9.01
GAAP		9.01
GBCC		1.01
General Survival Date		8.01
Governmental Entity		9.01
Gross Merger Consideration		2.01(a)(iv)

Hazardous Materials		9.01
Indebtedness		9.01
Indemnified Party		8.05(a)
Indemnifying Party		8.05(a)
Indemnification Agreement		5.05(a)
Indemnitee		5.05(a)
Intellectual Property		9.01
Interim Period		4.01(a)
Interim Financial Statements		3.01(h)(i)
Interim SAS 100 Report		5.11(c)
Interim Unaudited Financial Information		5.11(a)
IP License Agreements		3.01(j)(iv)
Key Employee		9.01
JX Shares		9.01
Knowledge		9.01
Law		9.01
Leased Real Property		3.01(j)(ii)
Legal Restraints		6.01(b)
Liability		9.01
Lien		9.01
Loss		8.02
Loss Reduction Amount		8.07(a)
Marks		9.01
Material Adverse Effect		9.01
Material Contracts		3.01(j)(iv)
Material Licensed IP		3.01(k)(iv)
Merger		Recitals
Merger Sub		Preamble
Monthly Unaudited Financial Information		5.11(a)
Net Closing Merger Consideration		2.01(a)(iv)
Net Merger Consideration		2.01(a)(iii)
Open Source Software		3.01(k)(xvii)
Order		9.01
Ordinary Course of Business		9.01
Parent		Preamble
Parent Indemnified Party		8.02
Patents		9.01
Paying Agent		2.04(a)
Per Share Consideration		2.01(a)(iii)
Permits		3.01(m)(i)
Permitted Liens		9.01
Person		9.01
Personal Property Leases		3.01(j)(i)

Pre-Closing Tax Period		3.01(n)(ii)
Preferred Shares		9.01
Preferred Stock		3.01(e)(i)
Preferred Stock Options		3.01(e)(iii)
Preferred Stock Plan		3.01(e)(iii)
Preliminary Allocation Schedule		2.05
Pro Rata Portion		9.01
Quarterly Unaudited Financial Information		5.11(a)
Real Property Leases		3.01(j)(ii)
Reasonable Best Efforts		9.01
Registered IP		9.01
Release		9.01
Representative		9.01
Requisite Shareholder Approval		9.01
Restricted Stock		3.01(e)(iii)
Securities Act		9.01
Senior Shares		6.02(f)
Series A Stock		3.01(e)(iii)
Series A-1 Stock		3.01(e)(iii)
Series B Stock		3.01(e)(iii)
Series B-1 Stock		3.01(e)(iii)
Series C Stock		3.01(e)(iii)
Series C-1 Stock		3.01(e)(iii)
Series D Stock		3.01(e)(iii)
Series D-1 Stock		3.01(e)(iii)
Series E Stock		3.01(e)(iii)
Series E-1 Stock		3.01(e)(iii)
Series EM Stock		3.01(e)(iii)
Series F Stock		3.01(e)(iii)
Series F Warrants		3.01(e)(iii)
Series F-1 Stock		3.01(e)(iii)
Series G Stock		3.01(e)(iii)
Series G-1 Stock		3.01(e)(iii)
Series H Stock		3.01(e)(iii)
Series H Warrants		3.01(e)(iii)
Series H-1 Stock		3.01(e)(iii)
Series I Stock		3.01(e)(iii)
Series J Stock		3.01(e)(iii)
Series J-1 Stock		3.01(e)(iii)
Series J-2(3x) Stock		3.01(e)(iii)
Series J-2(3x) Warrants		3.01(e)(iii)
Series J-2(7x) Stock		3.01(e)(iii)
Series K Stock		3.01(e)(iii)

vii

Series K Warrants		3.01(e)(iii)
Series L Stock		3.01(e)(iii)
Share Certificate		2.01(a)
Shareholder Notice		5.01
Shareholders’ Agreement		3.01(e)(vi)
Shareholders’ Representative		8.09(a)
Shareholders’ Representative Fund Amount		2.01(a)(v)
Shareholders’ Representative’s Fund		8.09(a)
Shareholders’ Representative’s Costs		8.09(c)
Shareholders’ Representative Tax Contest Claim		5.14(d)
Software		9.01
Special Damages		8.07(b)
Straddle Period Tax Returns		5.14(a)
Subsequently Delivered Financial Statements		5.11(b)
Subsidiary		9.01
Survival Date		8.01
Surviving Corporation		1.01
Tax		9.01
Tax Contest Claim		5.14(d)
Tax Return		9.01
Taxing Authority		9.01
Technology		9.01
Third Party Claim		8.06(a)
Third Party Claim Notice		8.06(a)
Trade Secrets		9.01
Transactions		Recitals
Unaudited 2006 Financial Statements		3.01(h)(i)
Unaudited Company Financial Statements		3.01(h)(i)
Unreserved Taxes		5.14(a)
WARN Act		3.01(r)(ii)

viii

AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of April 24, 2007, among DG FASTCHANNEL, INC. , a Delaware corporation (“ Parent ”), DG ACQUISITION CORP. V , a Georgia corporation and wholly owned subsidiary of Parent (“ Merger Sub ”), and PATHFIRE, INC. , a Georgia corporation (the “ Company ”), and, with respect to Articles VIII and X only, PFIRE ESCROW, INC., a Georgia corporation, solely in its capacity as Shareholders’ Representative. Certain capitalized terms used in the Agreement have the meanings ascribed to them in Section 9.01 hereof.

RECITALS

WHEREAS , the Board of Directors of each of the Company and Merger Sub has adopted this Agreement, and approved the merger of Merger Sub with and into the Company (the “ Merger ”) on the terms and subject to the conditions set forth in this Agreement;

WHEREAS , the Board of Directors of Parent has approved this Agreement and the Merger;

WHEREAS, the respective Boards of Directors of Parent and the Company have determined that the Merger is in furtherance of and consistent with their respective business strategies and is in the best interest of their respective companies and shareholders;

WHEREAS , promptly following the execution of this Agreement, as a condition and inducement to Parent’s willingness to enter into this Agreement, the Company shall promptly convene a meeting of its shareholders for purposes of approving this Agreement, the Merger and the other transactions contemplated hereby (the “ Transactions ”) pursuant to a duly-called meeting of the shareholders (the “ Company Shareholder Meeting ”); and

WHEREAS , Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants, and agreements in connection with, and also to prescribe various conditions to, the Merger.

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

ARTICLE I
THE MERGER

1.01 The Merger . Upon the terms and subject to the conditions of this Agreement, and in accordance with the Georgia Business Corporation Code (the “ GBCC ”), at the Effective Time, Merger Sub shall be merged with and into the Company, the separate corporate existence of Merger Sub shall thereupon cease, and the Company shall continue as the surviving corporation in the Merger (hereinafter sometimes referred to as the “ Surviving Corporation ”).

1.02 Effects of Merger . The Merger shall have the effects set forth in Section 14-2-1106 of the GBCC. Without limiting the generality of the foregoing, at the Effective Time, except as otherwise provided herein, all the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation.

1.03 Effective Time . Upon the terms and subject to the conditions of this Agreement, immediately after the Closing on the Closing Date, the Surviving Corporation shall file with the Secretary of State of the State of Georgia a certificate of merger (the “ Certificate of Merger ”) in such form as is required by, and is executed and delivered in accordance with, Section 14-2-1105 of the GBCC. The Merger shall become effective upon filing of the Certificate of Merger with the Secretary of State of the State of Georgia, or at such later date and time as may be agreed to by the parties and set forth in the Certificate of Merger. The date and time at which the Merger becomes effective is referred to herein as the “ Effective Time .”

1.04 Articles of Incorporation and Bylaws .

(a) At the Effective Time, the articles of incorporation of the Surviving Corporation (the “ Charter ”) shall be amended and restated in their entirety to read as set forth in Exhibit A hereto, until thereafter amended as provided therein or by applicable Law.

(b) At the Effective Time, the bylaws of Merger Sub, as in effect at the Effective Time, shall be the bylaws of the Surviving Corporation, to read as set forth in Exhibit A (the “ Bylaws ”), until thereafter amended as provided therein or by applicable Law.

1.05 Directors and Officers .

(a) The directors of Merger Sub at the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Charter and the Bylaws.

(b) The officers of the Merger Sub at the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Charter and the Bylaws.

1.06 The Closing . The closing of the Merger (the “ Closing ”) will take place at 10:00 a.m., local time, on a date to be specified by the parties, which shall be no later than the fifth business day after the satisfaction or, if permissable, waiver of the conditions set forth in Article VI (other than those conditions that by their terms are to be satisfied at the Closing but subject to the satisfaction or waiver of those conditions), at the offices of Kilpatrick Stockton LLP, 1100 Peachtree Street, Suite 2800, Atlanta, Georgia 30309, unless another time, date or place is agreed to in writing by Parent and the Company. The date on which the Closing occurs is referred to in this Agreement as the “ Closing Date ”.

ARTICLE II
CONVERSION OF SECURITIES

2.01 Effect on Shares . At the Effective Time, by virtue of the Merger and without any action on the part of any party or the holder of any Company Shares or any shares of Merger Sub:

(a) Conversion of Company Shares . Each Company Share issued and outstanding immediately prior to the Effective Time (other than any shares to be cancelled and retired pursuant to Section 2.01(b) or any Dissenting Shares) shall, upon the terms and subject to the conditions set forth in this Agreement, including this Section 2.01 and the escrow and indemnification provisions set forth in Section 2.03 and Article VIII , respectively, be converted into the right to receive, as soon as practicable after the Effective Time as provided in Section 2.04 , the amount, in cash, if any, equal to the Per Share Consideration payable with respect to shares of the class or series of such Company Share, without interest. At the Effective Time, all Company Shares shall cease to be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate that immediately prior to the Effective Time represented any such Company Shares (a “ Share Certificate ”) shall cease to have any rights with respect thereto, except any right to receive the Per Share Consideration. The right of any holder of any Company Share to receive the Per Share Consideration shall be subject to and reduced by the amount of any withholding that is required under applicable Tax law. As used in this Agreement, the following terms have the following meanings:

(i) “ Escrow Amount ” means $2,000,000, as reduced from time to time by the amount of funds distributed from the Escrow Account in accordance with the terms of this Agreement and the Escrow Agreement.

(ii) “ Gross Merger Consideration ” means an amount equal to $30,000,000.

(iii) “ Net Merger Consideration ” means an amount equal to the Gross Merger Consideration minus (a) the amount of any Funded Indebtedness of the Company outstanding as of the Effective Time and paid with funds provided by Parent pursuant to Section 2.03(b)(iii) (“ Closing Debt ”), and (b) the Company Fees and Expenses paid by the Parent pursuant to Section 2.03(b)(iv).

(iv) “ Net Closing Merger Consideration ” means Net Merger Consideration minus (y) the Escrow Amount, and (z) the Shareholders’ Representative Fund Amount.

(v) “ Per Share Consideration ” means the amount, if any, of the Net Merger Consideration that one share of a particular class or series of Company Shares is entitled to receive as a result of the Merger, determined in accordance with the formula set forth opposite the name of such class or series of Company Shares on Schedule 2.01(a)(v) of this Agreement and subject, in the case of the JX Shares, to adjustment to the extent the Escrow Account is used

to satisfy indemnification obligations pursuant to the Escrow Agreement and this Agreement.

(vi) “ Shareholders’ Representative Fund Amount ” means $500,000.

(b) Cancellation of Treasury Stock and Company Shares Owned by Parent . All Company Shares that are owned as treasury shares by the Company or owned by Parent or Merger Sub immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist and no consideration shall be delivered or deliverable in exchange therefor.

(c) Shares of Merger Sub . Each issued and outstanding share of common stock, without par value, of Merger Sub, shall be converted into and become one validly issued, fully paid and nonassessable share of the common stock, without par value, of the Surviving Corporation. If between the date of the Agreement and the Effective Time the Company Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Per Share Consideration shall be correspondingly adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares.

(d) Dissenters’ Rights . Notwithstanding anything in this Agreement to the contrary, Company Shares that are issued and outstanding immediately prior to the Effective Time and that are held by any holder thereof entitled to dissent from the Merger under Section 14-2-1302 of the GBCC and who exercised that right in the manner required by Sections 14-2-1320 through 14-2-1327 of the of the GBCC (the “ Dissenting Shares ”) shall not be converted into the right to receive the consideration as provided in Section 2.01(a) , but instead, the holder thereof shall be entitled to obtain payment of the fair value of such Dissenting Shares in accordance with the provisions of Article 13 of the GBCC. At the Effective Time, the Dissenting Shares shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such shares in accordance with the provisions of Article 13 of the GBCC. Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to dissent under Article 13 of the GBCC, or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Article 13 of the GBCC, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under Article 13 of the GBCC shall cease and such Dissenting Shares shall thereupon be deemed to have been converted at the Effective Time into, and shall have become, the right to receive the consideration as provided in Section 2.01(a) and the holder thereof shall be and be treated as a Company Indemnifying Party to the extent the Dissenting Shares are JX Shares. The Company shall promptly notify Parent of any written (x) notice of intent to demand payment for Dissenting Shares under Section 14-2-1321, (y) demand for payment under Section 14-2-1323, or (z) withdrawal of such notice or demand received by the Company, and any other instruments served pursuant to Article 13 of the GBCC and received by the Company. Parent shall have the opportunity to participate in and to direct all negotiations and proceedings with respect to demands for payment pursuant to Article 13 of the GBCC. The

Company shall not, except with the prior written consent of Parent or as otherwise required by applicable law, make any payment with respect to any such demands for payment or offer to settle or settle any such demands.

2.02 Treatment of Company Options and Company Warrants . Prior to the Effective Time, the Company shall take all actions reasonably necessary and appropriate to provide that concurrent with, or prior to, the Effective Time, all outstanding, unexpired and unexercised Company Options and Company Warrants with an exercise price per share of Common Stock or Preferred Stock less than the amount of Per Share Consideration, if any, for such class or series of Company Shares subject thereto shall be canceled and extinguished and the holders thereof shall have no right to receive any consideration therefor, in each case, subject to the terms and conditions applicable thereto and provided that any actions or procedures with respect to any Company Options or Company Warrants specified in Section 3.01(f) of the Company Disclosure Schedules shall be taken as provided therein.

2.03. Payments at Closing .

(a) Escrow Account . On the Closing Date, Parent shall deliver to the Escrow Agent, by wire transfer of immediately available funds, the Escrow Amount (deducted and withheld from the Net Merger Consideration to determine in part the Net Closing Merger Consideration payable at Closing to holders of Company Shares in respect of their Company Shares pursuant to Section 2.01(a) ) which shall be held in an escrow account (the “ Escrow Account ”) pursuant to the terms of the Escrow Agreement among the Escrow Agent, Parent and the Shareholders’ Representative substantially in the form attached as Exhibit B hereto (the “ Escrow Agreement ”), and disbursed pursuant to the provisions of this Agreement and the Escrow Agreement. Any and all interest and other earnings on the Escrow Account will be applied as set forth in the Escrow Agreement. Subject to the provisions of this Agreement and on the terms and subject to the conditions of the Escrow Agreement, any amounts in the Escrow Account in excess of $1,000,000 as of the first anniversary of the Closing Date (the “ First Escrow Release Date ”) minus all amounts then subject to any pending claims for indemnification under Section 8.02 shall be released and paid on the First Escrow Release Date by the Escrow Agent to the Paying Agent. Subject to the provisions of this Agreement and on the terms and subject to the conditions of the Escrow Agreement any amounts remaining in the Escrow Account as of the 18 month anniversary of the Closing Date (the “ Final Escrow Release Date ”) minus all amounts then subject to any pending claims for indemnification under Section 8.02 , shall be released and paid by the Escrow Agent to the Paying Agent on the Final Escrow Release Date. Any amounts otherwise due to be released to the Paying Agent on the First Escrow Release Date or the Final Escrow Release Date that are withheld because they are subject to a pending indemnification claim shall be segregated from the remaining portions of the Escrow Account, applied solely to the pending claim for which they are withheld, and when, as and if any such pending claim is resolved, in whole or in part, such withheld funds shall be applied to such claim, released from the Escrow Account and paid to the Paying Agent, or continued to be withheld, as appropriate so that any amount retained in the Escrow Account for such claim from time to time does not exceed the unresolved amount of such claim. All amounts released from

the Escrow Account and paid to the Paying Agent shall then to be paid by the Paying Agent from time to time to the holders of JX Shares, in accordance with their respective Pro Rata Portions, as Per Share Consideration pursuant to Section 2.01(a). Holders of the Company Shares shall, by virtue of their receipt of any Per Share Consideration shall be deemed to have consented to and approved the Escrow Agreement and of all the arrangements relating thereto, including the deposit of the Escrow Amount with the Escrow Agent to be held and disbursed in accordance with the terms thereof and deemed to have consented to and approved the terms of Section 8.09 and the deposit of the Shareholders’ Representative Fund Amount and the use of such funds pursuant to Section 8.09.

(b) Other Payments . At the Closing, Parent will make the following additional payments:

(i) to an account in the name of the Shareholders’ Representative, that is designated in writing by the Shareholders’ Representative not less than three (3) Business Days prior to Closing, by wire transfer of immediately available funds, an amount equal to the Shareholders’ Representative Fund Amount;

(ii) to an account in the name of the Paying Agent, that is designated in writing by the Company not less than three (3) Business Days prior to Closing, by wire transfer of immediately available funds, an amount equal to the Net Closing Merger Consideration payable to holders of Company Shares pursuant to Section 2.01(a) ;

(iii) to an account in the name of the holder or holders of the Closing Debt identified on Schedule 2.03(b)(iii) of this Agreement, which account shall be designated in writing by the holder or holders of such Closing Debt not less than three (3) Business Days prior to Closing, by wire transfer of immediately available funds, the amounts necessary to satisfy the Closing Debt in full; and

(iv) to the accounts of the persons and entities identified by the Company in a schedule to be delivered to Parent no fewer than three (3) Business Days prior to Closing, which schedule shall accurately reflect all investment banking fees and commissions (including those payable to North Haven Partners), legal and other professional fees and expenses, and other out-of-pocket fees, expenses and costs of the Company incurred in connection with the Transactions prior to Closing to the extent not paid before the Balance Sheet Date (the “ Company Fees and Expenses ”), which accounts shall be designated in writing by the Company at the direction of such persons and entities, by wire transfer of immediately available funds, the amounts necessary to satisfy the Company Fees and Expenses as of the Closing in full. For the avoidance of doubt, severance costs incurred in connection with the Transactions shall not be deemed to be Company Fees and Expenses.

(c) Allocation of Contributions to Escrow Account and Shareholders’ Representative Fund . The Escrow Amount and the Shareholders’ Representative Fund shall be deemed contributed by the holders of the JX Shares other than any JX Shares that are Dissenting Shares (the “ Company Indemnifying Parties ”). The portion of the Escrow Amount contributed

by each Company Indemnifying Party shall be an amount equal to (x) such Company Indemnifying Party’s Pro Rata Portion multiplied by (y) the Escrow Amount. The portion of the Shareholders’ Representative Fund Amount contributed by each Company Indemnifying Party shall be an amount equal to (x) such Company Indemnifying Party’s Pro Rata Portion multiplied by (y) the Shareholders’ Representative Fund Amount. Upon (i) receipt by the Paying Agent of the amount set forth in Section 2.03(b)(ii) , and (iii) receipt by the Shareholders’ Representative of the Shareholders’ Representative Fund Amount, each Company Indemnifying Party shall be deemed to have received the full consideration payable to such Company Indemnifying Party pursuant to Section 2.01(a) and to have deposited with the Escrow Agent an amount equal to (x) such Company Indemnifying Party’s Pro Rata Portion multiplied by (y) the Escrow Amount, as security and sole recourse for the indemnity provided for in Article VIII .

2.04. Surrender of Certificates .

(a) Paying Agent . Prior to the Effective Time, Parent shall designate a bank or trust company approved by the Shareholders’ Representative to act as paying agent (the “ Paying Agent ”) for the payment of the Net Closing Merger Consideration payable to former holders of Company Shares pursuant to Section 2.01(a) upon surrender of Share Certificates, and payment of additional Per Share Consideration as provided in Section 2.01(a). The portion of the Net Closing Merger Consideration and any amounts subsequently received from the Escrow Agent or the Shareholders’ Representative deposited with the Paying Agent in accordance with this Agreement shall be invested by the Paying Agent until disbursed, as directed by Parent or the Surviving Corporation, in obligations of or guaranteed by the United States of America or obligations of an agency of the United States of America which are backed by the full faith and credit of the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, or in deposit accounts, certificates of deposit or banker’s acceptances of, repurchase or reverse repurchase agreements with, or Eurodollar time deposits purchased from, commercial banks, each of which has capital, surplus and undivided profits aggregating more than $500 million (based on the most recent financial statements of the banks which are then publicly available at the Securities Exchange Commission or otherwise) (such funds being hereinafter referred to as the “ Exchange Fund ”). All fees and expenses of the Paying Agent shall be paid by Parent.

(b) Exchange Procedures . If any Share Certificates (a “ Certificate ”) are not surrendered at Closing by the registered holders thereof, as soon as practicable after the Effective Time (but in no event later than five (5) Business Days thereafter), Parent shall cause the Paying Agent to send each such registered holder thereof a notice advising such holder of the effectiveness of the Merger, a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates held by such person shall pass, only upon proper delivery of the Certificates to the Paying Agent and which shall be in customary form and contain customary provisions) and instructions for use in effecting the surrender of the Certificates in exchange for the consideration payable pursuant to Sections 2.01(a) . Upon surrender of a Certificate for cancellation to the Paying Agent, together with such letter of transmittal, duly completed and validly executed, and such other documents as may reasonably

be required by the Paying Agent, the holder of such Certificate shall be entitled to receive from the Paying Agent, on behalf of Parent, as promptly as practicable in accordance with the customary procedures of the Paying Agent, in exchange therefor the amount of cash into which the shares or rights formerly represented by such Certificate shall have been converted pursuant to Section 2.01(a) , and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Company Shares that is not registered in the transfer records of the Company, payment of the consideration pursuant to Section 2.01(a) in exchange therefor may be made to a person other than the person in whose name the Certificate so surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a person other than the registered holder of such Certificate or establish to the satisfaction of Parent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.04(b) , each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the consideration which the holder thereof has the right to receive in respect of such Certificate pursuant to this Article II . No interest shall be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of this Article II .

(c) No Further Ownership Rights in Company Shares . All cash paid upon the surrender of a Certificate in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Company Shares formerly represented by such Certificate. At the close of business on the day on which the Effective Time occurs, the stock transfer books of the Company shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Certificate is presented to the Surviving Corporation or the Paying Agent for transfer or any other reason, it shall be canceled and exchanged as provided in this Article II .

(d) Termination of the Exchange Fund . Any portion of the Exchange Fund which remains undistributed to the holders of the Certificates for six months after the Effective Time shall be delivered to Parent, upon demand, and any holders of the Certificates who have not theretofore complied with this Article II shall thereafter look only to Parent for payment of their claim for their portion of the Net Closing Merger Consideration.

(e) No Liability . None of Parent, Merger Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any person in respect of any cash from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. If any Certificate shall not have been surrendered prior to two years after the Effective Time (or immediately prior to such earlier date on which any Net Closing Merger Consideration would otherwise escheat to or became the property of any Governmental Entity), any such Net Closing Merger Consideration in respect thereof shall, to the extent permitted by applicable Law, become the property of Parent, free and clear of all claims or interest of any person previously entitled thereto.

(f) Lost Certificates . If any Certificate shall have been lost, stolen, defaced or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen, defaced or destroyed and, if required by Parent, the posting by such person, of a bond in such reasonable amount as Parent may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent shall pay in respect of such lost, stolen, defaced or destroyed Certificate the applicable Net Closing Merger Consideration with respect thereto, without interest, and any additional Per Share Consideration that then or thereafter becomes payable with respect thereto.

(g) Withholding Rights . Parent, the Surviving Corporation, the Escrow Agent or the Paying Agent shall be entitled to deduct and withhold from the amounts payable pursuant to this Agreement to any holder of Company Shares such amounts as Parent, the Surviving Corporation, the Escrow Agent or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of applicable Tax Law. To the extent that amounts are so withheld and paid over to the appropriate Taxing Authority by Parent, the Surviving Corporation, the Escrow Agent or the Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Shares in respect of which such deduction and withholding was made by Parent, the Surviving Corporation, the Escrow Agent or the Paying Agent.

2.05 Allocation of Net Merger Consideration . The Company has prepared a preliminary summary of the allocation of consideration payable to holders of Company Shares contemplated by this Article II , which is attached to this Agreement as Schedule 2.05 of this Agreement (the “ Preliminary Allocation Schedule ”), based on, among other things, certain assumptions and estimates concerning the adjustments to the Gross Merger Consideration required under this Agreement as of the Effective Time, but excluding any assumptions concerning estimated withholding Taxes or any claims against the Escrow Account. The parties acknowledge and agree that the Company and Parent will jointly amend Schedule 2.05 of this Agreement at or before as of the Effective Time to (i) reflect the actual adjustments and allocation of proceeds then required by the applicable provisions of this Agreement and the respective applicable rights, preferences and privileges of the Company Shares, (ii) reflect any withholding Taxes and (iii) to instruct the Paying Agent as to the portion of the Exchange Fund payable as of the Effective Time (and amounts subsequently released to the Paying Agent for distribution) to specific holders of Company Shares (the “ Final Allocation Schedule ”). The parties acknowledge that the aggregate dollar amount allocated and payable to holders of Company Shares at the Closing may differ from the Preliminary Allocation Schedule based upon (i) any withholding Taxes, (ii) the number of Company Shares issued and outstanding, (iii) final determination of the amount of Closing Debt to be paid at Closing and (iv) final determination of accrued, cumulative dividends payable to the holders of the Series L Preferred Stock. In no case shall the Final Allocation Schedule provide for aggregate payments to the holders of Company Shares (including payments deemed received by the holders of Company Shares by virtue of payment at Closing to the Exchange Fund, the Escrow Account, and the Shareholder’s Representative Fund) in excess of the Net Merger Consideration.

ARTICLE III
REPRESENTATIONS AND WARRANTIES

3.01 Representations and Warranties of the Company . Except as set forth in the disclosure schedule (with specific reference to the particular Section or subsection of this Agreement to which the information set forth in such disclosure relates; provided that information contained in any section of the Company Disclosure Schedules shall be deemed to be disclosed with respect to and qualify any other Section of this Agreement to the extent that it is readily apparent from the face of such disclosure that such information is applicable to such other Section of this Agreement whether or not the applicable representation and warranty refers to any schedule) delivered by the Company to Parent prior to the execution of this Agreement (the “ Company Disclosure Schedules ”), the Company represents and warrants to Parent and Merger Sub as follows:

(a) Organization and Good Standing . The Company is a corporation duly organized, validly existing and in good standing under the laws of the state of Georgia and has all requisite corporate power and authority necessary to own, lease or otherwise hold and operate its properties and assets and to carry on its business as presently conducted. The Company is duly qualified or licensed to do business and is in good standing in each jurisdiction (except, in the case of good standing, any jurisdiction that does not recognize such concept) in which the nature of its business or the ownership, leasing or operation of its properties makes such qualification or licensing necessary.

(b) Subsidiaries . The Company does not have any Subsidiaries.

(c) Corporate Records . Copies of the Articles of Incorporation (the “ Company Charter ”) and and the bylaws of the Company, as amended to the date of this Agreement (as so amended, the “ Company Bylaws ”) heretofore delivered to Parent are true, complete and correct copies of such instruments as amended. The Company Charter and Company Bylaws are in full force and effect. The Company has made available true, correct and complete copies in all material respects the minute books, stock record books and other similar records of the Company except for records subject to the attorney-client privilege of the Company or with respect to which disclosure would contravene any Law or any Contract to which the Company is a party. The Company is not in violation of any material provision of the Company Charter or Company Bylaws.

(d) Corporate Power and Authority . The Company has the requisite corporate power and authority to execute and deliver this Agreement. Subject to the receipt of the Requisite Shareholder Approval, the execution and delivery by the Company of this Agreement, the performance by it of its obligations hereunder and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate actions on the part of the Company. Subject to the receipt of the Requisite Shareholder Approval, this Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligations of the Company, enforceable against it in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws

now or hereafter in effect relating to creditors’ rights generally and subject to general principles of equity. The Board of Directors of the Company (the “ Board ”) has unanimously approved this Agreement, declared advisable and recommends the transactions contemplated hereby and has directed that this Agreement and the transactions contemplated hereby be submitted to the Company’s shareholders for approval.

(e) Capital Structure .

(i) The authorized capital stock of the Company consists of 495,000,000 shares of common stock, without par value (the “ Common Stock ”), and 513,620,506 shares of preferred stock, without par value (“ Preferred Stock ”).

(ii) As of the date hereof, (A) 6,008,988 shares of Common Stock (excluding treasury shares) were issued and outstanding, (B) 30,000,000 shares of Common Stock were reserved for issuance pursuant to the Company’s 1997 Stock Incentive Plan (as amended) (the “ Common Stock Plan ”), of which (x) 9,236,681 shares were subject to outstanding options or other rights to purchase or acquire shares of Common Stock granted thereunder (collectively, “ Common Stock Options ”), and (y) 2,233,986 shares have been issued and are outstanding pursuant to the exercise of Common Stock Options, and (D) warrants to acquire 180,000 shares of Common Stock from the Company pursuant to the warrant agreements listed in Section 3.01(e)(ii)(D) of the Company Disclosure Schedules (the “ Common Warrants ”) were outstanding.

(iii) As of the date hereof, (A) 3,210,000 shares of Company Preferred Stock have been designated as Series A Convertible Preferred Stock (the “ Series A Stock ”), of which 1,125,000 shares are issued and outstanding (B) 3,210,000 shares of Company Preferred Stock have been designated as Series A-1 Convertible Preferred Stock (the “ Series A-1 Stock ”), of which 2,025,000 shares are issued and outstanding, (C) 12,056,253 shares have been designated as Series B Convertible Preferred Stock (the “ Series B Stock ”), of which 5,531,726 shares are issued and outstanding, and (D) 12,056,253 shares of Company Preferred Stock have been designated as Series B-1 Convertible Preferred Stock (the “ Series B-1 Stock ”), of which 3,343,276 shares are issued and outstanding, (E) 3,000 shares of Company Preferred Stock have been designated as Series C Convertible Preferred Stock (the “ Series C Stock ”), of which 3,000 shares are issued and outstanding, (F) 3,000 shares of Company Preferred Stock have been designated as Series C-1 Convertible Preferred Stock (the “ Series C-1 Stock ”), none of which are issued and outstanding, (G) 18,000,000 shares of Company Preferred Stock have been designated as Series D Convertible Preferred Stock (the “ Series D Stock ”), of which 13,653,218 are issued and outstanding, (H) 18,000,000 shares of Company Preferred Stock have been designated as Series D-1 Convertible Preferred Stock (the “ Series D-1 Stock ”), of which 4,066,564 are issued and outstanding, (I) 1,800,000 shares of Company Preferred Stock have been designated as Series E Convertible Preferred Stock (the “ Series E Stock ”), of which 1,743,756 are issued and outstanding, (J) 1,800,000 shares of Company Preferred Stock have been designated as Series E-1 Convertible Preferred Stock (the “ Series E-1 Stock ”), none of which are issued and outstanding, (K) 6,141,000 shares of Company Preferred Stock have been

designated as Series F Convertible Preferred Stock (the “ Series F Stock ”), of which (x) 175,067 are issued and outstanding, and (y) 260,586 shares are issuable pursuant to the warrant agreements listed in Section 3.01(e)(iii)(K) of the Company Disclosure Schedules (the “ Series F Warrants ”), (L) 6,141,000 shares of Company Preferred Stock have been designated as Series F-1 Convertible Preferred Stock (the “ Series F-1 Stock ”), none of which are issued and outstanding, (M) 10,350,000 shares of Company Preferred Stock have been designated as Series G Convertible Preferred Stock (the “ Series G Stock ”), of which 8,248,760 are issued and outstanding, (N) 10,350,000 shares of Company Preferred Stock have been designated as Series G-1 Convertible Preferred Stock (the “ Series G-1 Stock ”), of which 2,044,126 are issued and outstanding, (O) 69,000,000 shares of Company Preferred Stock have been designated as Series H Convertible Preferred Stock (the “ Series H Stock ”), of which (x) 52,133,050 are issued and outstanding, and (y) 245,098 shares are issuable pursuant to the warrant agreements listed in Section 3.01(e)(iii)(O) of the Company Disclosure Schedules (the “ Series H Warrant s ”) (P) 69,000,000 shares of Company Preferred Stock have been designated as Series H-1 Convertible Preferred Stock (the “ Series H-1 Stock ”), of which 13,141,055 are issued and outstanding, (Q) 2,500,000 shares of Company Preferred Stock have been designated as Series I Convertible Preferred Stock (the “ Series I Stock ”), none of which are issued and outstanding, (R) 81,000,000 shares of Company Preferred Stock have been designated as Series J Convertible Preferred Stock (the “ Series J Stock ”), of which 77,841,831 are issued and outstanding, (S) 3,431,426 shares of Company Preferred Stock have been designated as Series J-1 Stock (the “ Series J-1 Stock ”), of which 3,431,426 of which are issued and outstanding, (T) 36,000,000 shares of Company Preferred Stock have been designated as Series J-2(3x) Stock (the “ Series J-2(3x) Stock ”), of which (x) 5,689,608 are issued and outstanding, and (y) 2,399,232 shares are issuable pursuant to the warrant agreements listed in Section 3.01(e)(iii)(T) of the Company Disclosure Schedules (the “ Series J-2(3x) Warrants ”) (U) 36,000,000 shares of Company Preferred Stock have been designated as Series J-2(7x) Stock (the “ Series J-2(7x) Stock ”), of which 16,347,368 are issued and outstanding, (V) 80,000,000 shares of Company Preferred Stock have been designated as Series K Stock (the “ Series K Stock ”), of which (x) no shares are issued and outstanding, and (y) 76,146,592 shares are issuable pursuant to the warrant agreements listed in Section 3.01(e)(iii)(V) of the Company Disclosure Schedules (the “ Series K Warrants ”) (W) 18,250,000 shares of Company Preferred Stock have been designated as Series EM Convertible Preferred Stock (the “ Series EM Stock ”) and reserved for issuance pursuant to the Company’s Preferred Stock Incentive Plan (the “ Preferred Stock Plan ,” together with the Common Stock Plan, the “ Company Stock Plans ”), of which (x) 8,706,606 shares were subject to outstanding options or other rights to purchase or acquire shares of Series EM Stock granted thereunder (collectively, “ Preferred Stock Options ,” together with the Common Stock Options, the “ Company Options ”), (y) 11,464 shares have been issued and are outstanding pursuant to the exercise of Preferred Stock Options, and (z) 9,125,000 are issued and outstanding and subject to the restricted stock award agreements listed in Section 3.01(e)(iii)(W) of the Company Disclosure Schedules (the “ Restricted Stock ”), and (X) 6,800,000 shares of Company Preferred Stock have been designated as Series L Stock (the “ Series L Stock ”), of which 6,009,617 are issued and outstanding.

(iv) The capital stock of the Company is held of record as of the date of the Agreement by the Persons and in the amount of shares as set forth in Section 3.01(e)(iv) of the Company Disclosure Schedules .

(v) All outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable and have been issued in compliance with the Company Charter, applicable Laws and all requirements set forth in contracts. There are no declared or accrued but unpaid dividends or distributions with respect to any shares of the capital stock of the Company.

(vi) There are no outstanding Company Options other than those granted pursuant to the Company Stock Plans. Section 3.01(e)(vi) of the Company Disclosure Schedules sets forth for each outstanding Company Option, (a) the name of the holder of such option, (b) the number of shares of Common Stock issuable upon the exercise of such option, (c) the exercise price of such option and (d) the plan under which such option was issued and if it is an “incentive stock option” within the meaning of Section 422 of the Code or subject to Section 409A of the Code. Section 3.01(vi) of the Company Disclosure Schedules sets forth for each outstanding Company warrant to purchase shares of capital stock of the Company, (i) the name of the holder of such warrant, (ii) the number of shares of Common Stock issuable upon exercise of such warrant and (iii) the exercise price of such warrant. As of the date of the Agreement, there are Company Options to acquire 9,236,681 shares of Common Stock pursuant to the Company Stock Plans outstanding and unexercised. Section 3.01(vi) of the Company Disclosure Schedules accurately sets forth with respect to each share of Common Stock that are subject to repurchase rights or vesting or similar restrictions as of the date of the Agreement (“ Restricted Stock ”): (A) the name of the holder of such shares of Restricted Stock; (B) the total number of shares of Restricted Stock that remain subject to such repurchase rights or vesting or similar restrictions; (C) the date on which such shares of Restricted Stock were granted; (D) the vesting schedule and vesting commencement date for such shares of Restricted Stock; (E) the purchase price per share of Restricted Stock; and (F) whether an election under Section 83(b) of the Code was timely and accurately filed with respect to such shares of Restricted Stock. There are no options, warrants, calls, rights, phantom rights, commitments or agreements of any character to which the Company is a party or by which it is bound, relating to the issued or unissued capital stock of the Company or obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of capital stock of 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. True, complete and correct copies of the plans pursuant to which such Company Options, and shares of Restricted Stock and were issued and copies of all outstanding Company Warrants have been provided or made available to the Parent. Except for the Company’s Fifth Amended and Restated Shareholders Agreement, dated April 9, 2002 and amended on March 11, 2004 (the “ Shareholders Agreement ”), the Company is not a party to, and as of the date of the Agreement, to the Knowledge of the Company, there are no other voting trusts, proxies or other binding agreements or understandings with respect to the voting interests of the Company. Except for the Company’s Sixth Amended and Restated Registration Rights Agreement, dated April 9, 2002, there are no agreements or arrangements pursuant to which the Company is or could be required to register shares of Common Stock or other securities under the Securities

Act. All shares of capital stock of the Company to be issued pursuant to the Company Options and warrants described in Section 3.01(vi) of the Company Disclosure Schedules will be granted and issued, in compliance with all applicable Laws and all requirements set forth in applicable contracts. No Company Option or Company Warrant has an exercise price per share of Common Stock or Preferred Stock less than the amount of Per Share Consideration, for such class or series of Company Shares subject thereto.

(vii) Except as set forth in Section 3.01(e)(vii) of the Company Disclosure Schedules , there are no preemptive rights or agreements, arrangements or understandings to issue preemptive rights with respect to the issuance or sale of shares of Common Stock to which the Company is a party or to which it is bound.

(viii) The Final Allocation Schedule, when delivered by the Company, will accurately and completely reflect the allocation of the Net Merger Consideration to the Company Shares required by the Company Charter and any distribution to the shareholders made in accordance with the Final Allocation Schedule will be in all respects consistent with and will not violate the Company Charter.

(f) No Violation . Except as set forth in Section 3.01(f) of the Company Disclosure Schedules , neither the execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder, nor the consummation by the Company of the transactions contemplated hereby, will (i) assuming receipt of the Requisite Shareholder Approval, materially contravene any provision of the Company Charter or Company Bylaws, (ii) violate any material Law or judgment applicable to the Company, (iii) result in the creation or imposition of any material Lien (other than Permitted Liens) on any of the property held by the Company, or (iv) assuming receipt of the Requisite Shareholder Approval, require any consent or other action by any Person under, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or give rise to any right of termination, change of control rights, cancellation, modification, enhancement of rights of third parties, revocation of grant of rights or assets, placement into or release from escrow of any assets of the Company or acceleration of any right or obligation of the Company or a loss of any benefit to which the Company is entitled under any note, bond, mortgage, indenture, deed of trust, license, contract, lease, permit, franchise or other instrument or obligation to which the Company is a party or by which the Company or its properties or assets are bound or affected (including under any outstanding debt), except for such matters referred to in the foregoing clause (iv) as would not, individually or in the aggregate, be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect.

(g) Government Approvals . Except as set forth in Schedule 3.01(g) of the Company Disclosure Schedules , no consent, waiver, approval, order, authorization or declaration of, filing or registration with, or notice to, any Governmental Entity is required to be made, obtained or given by or with respect to the Company in connection with the execution and delivery by the Company of this Agreement, the performance by the Company of its obligations hereunder or the consummation by the Company of the transactions contemplated hereby, except

for (a) such consents, waivers, approvals, orders, authorizations, declarations, filings, registrations and notices, which if not obtained or made would not reasonably be expected to have a Material Adverse Effect, and (b) the filing of the Certificate of Merger with the Secretary of State of the State of Georgia.

(h) Financial Statements .

(i) The Company has delivered to Parent or its Representatives true, complete and correct copies of the Company’s (i) audited balance sheet of the Company as of December 31, 2005 and the related statements of operations, changes in shareholders’ deficit, and cash flows for the year then ended (the “ Audited Financial Statements ”), (ii) the unaudited balance sheet of the Company as of December 31, 2006 and the related statements of operations, changes in shareholders’ deficit, and cash flows for the year then ended (the “ Unaudited 2006 Financial Statements ”), and (iii) the unaudited balance sheet of the Company “ Company Balance Sheet ”) as of March 31, 2007 (the “ Balance Sheet Date ”) and the related unaudited statements of operations and cash flows of the Company for the three-month period ended March 31, 2007 (the “ Interim Financial Statements ,” together with the Unaudited 2006 Financial Statements and Company Balance Sheet, the “ Unaudited Company Financial Statements ,” and the Unaudited Company Financial Statements together with the Audited Financial Statements, collectively, the “ Company Financial Statements ”). The Company Financial Statements have been prepared from, and in accordance with, the information contained in the books and records of the Company, which have been regularly kept and maintained in accordance with the Company’s normal and customary practices and applicable accounting practices and fairly present, in all material respects, the financial condition of the Company as of the dates thereof and results of operations and cash flows for the periods referred to therein, and, except as set forth in Schedule 3.01(h)(i) of the Company Company Disclosure Schedules, have been prepared in accordance with GAAP, consistently applied throughout the periods indicated, except as otherwise stated therein or in the notes thereto and with respect to the Unaudited Company Financial Statements, which are subject to normal year-end adjustment (which will not be material) and do not include notes as required by GAAP.

(ii) The Subsequently Delivered Financial Statements delivered to Parent pursuant to Section 5.11 , will be prepared from, and in accordance with, the information contained in the books and records of the Company, which have been regularly kept and maintained in accordance with the Company’s normal and customary practices and applicable accounting practices and will fairly present, in all material respects, the consolidated financial condition of the Company as of the dates thereof and results of operations and cash flows for the periods referred to therein, and will be prepared in accordance with GAAP, consistently applied throughout the periods indicated, except to the extent with respect to the Interim Unaudited Financial Information, which will be subject to normal year-end adjustment (which will not be material) and will not include notes as required by GAAP.

(iii) Since the Balance Sheet Date, the Company has not incurred any material Liabilities or obligations (whether direct, indirect, accrued or contingent) greater than

$40,000, except for Liabilities or obligations (a) incurred in the Ordinary Course of Business, or (b) shown, accrued or reserved against in the Company Financial Statements.

(i) Absence of Certain Changes or Events . Except for matters relating to the Transactions, from the Balance Sheet Date through the date of this Agreement, the Company has conducted its business the Ordinary Course of Business and has not taken any of the actions described in Section 4.01(a), except as permitted by Section 4.01(a).

(j) Leases of Personal and Real Property; Owned Real Property; Material Contracts; No Default .

(i) Section 3.01(j)(i) of the Company Disclosure Schedules sets forth a true, complete and correct list of each lease, sublease, license and other agreement, including all amendments, modifications or supplements with respect thereto, of personal property and equipment to which the Company is a party or by which the Company or its respective properties or assets are bound that (a) provides for payments in excess of $75,000 per annum or (b) provides for payments in excess of $50,000 per annum and has a term remaining after the date of the Agreement in excess of three years that may not be terminated by the Company within 90 days after notice thereof (collectively, the “ Personal Property Leases ”). The Company has delivered to the Parent a true, complete and correct copy of each of the Personal Property Leases.

(ii) Section 3.01(j)(ii) of the Company Disclosure Schedules sets forth a true, complete and correct list of all leases, subleases, licenses and other agreements, including all amendments, modifications or supplements with respect thereto (collectively, the “ Real Property Leases ”), under which the Company uses or occupies or has the right to use or occupy any real property that (a) provides for payments in excess of $75,000 per annum or (b) provides for payments in excess of $50,000 per annum and has a term remaining after the date of the Agreement in excess of one year and that may not be terminated by the Company within 90 days after notice thereof (the land, buildings and other improvements covered by the Real Property Leases and any other rights of the tenant thereunder being herein called the “ Leased Real Property ”), including the address of the premises demised under each Real Property Lease, the landlord, rent and use thereof. The Company has not subleased any of the Leased Real Property or given any third party any license or other right to occupy any portion of the Leased Real Property. The operations of the Company on the Leased Real Property nor, to the Knowledge of the Company, such Leased Real Property, including the improvements thereon, violate in any material respect any applicable building code, zoning requirement, or classification or statute relating to the particular property or such operations. The Company has delivered to the Parent a true, complete and correct copy of each of the Real Property Leases, and (i) the Company nor has not waived any term or condition thereof, and all material covenants to be performed by the Company prior to the Closing Date, or, to the Knowledge of the Company, any other party to any Real Property Lease, have been performed in all material respects, except for such noncompliance or failure that individually or in the aggregate has not had and would not reasonably be expected to have a Material Adverse Effect, (ii) the Company is current (and not late) with respect to all rental payments due under any Real Property Lease, (iii) no security

deposit or portion thereof deposited with respect to any Real Property Lease has been applied in respect of a breach or default under any Real Property Lease which has not been redeposited in full and (iv) the Company has not collaterally assigned or granted any security interest in any Real Property Lease or any interest therein.

(iii) The Company does not currently own, and has not ever owned any real property.

(iv) Section 3.01(j)(iv) of the Company Disclosure Schedules sets forth a true, complete and correct list of all agreements to which the Company is a party or by which the Company or any of its respective properties or assets are bound, of the following types: (a) any contract involving an investment by the Company in any partnership, limited liability company or joint venture; (b) any contract of the Company which involves a financing arrangement in excess of $75,000; (c) employment agreements with any Key Employee; (d) loan agreements, notes, mortgages, indentures, security agreements and other material agreements and instruments relating to the borrowing of money in excess of $75,000; (e) agreements with any Affiliate of the Company; (f) any contract that places any material non-competition, exclusivity or similar restriction relating to the geographical area of operations or scope or type of business of the Company or any of their respective Affiliates; (g) any executory contract relating to any acquisition or disposition of any capital stock or equity interest of the Company; (h) contracts involving payments or revenue in excess $50,000 per annum; (i) contracts material to the conduct of the Business as currently conducted that provides for payments of royalties or other license fees to third parties grants a third party any license to Intellectual Property that is not limited to the internal use of such third party, or pursuant to which the Company has been granted any license to Intellectual Property (other than licenses for commercial “off-the-shelf” or “shrink wrap” software that has not been modified or customized for the Company and other than licenses contained in or pursuant to customer contracts entered in the Ordinary Course of Business) (the “ IP License Agreements ”);(j) contracts granting the other party to such contract or a third party “most favored nation” status; (k) contracts providing for any license or franchise granted by the Company pursuant to which the Company has agreed to provide any third party with access to source code or to provide for source code to be put in escrow or to refrain from granting license or franchise rights to any other person; and (l) contracts that would prohibit or materially delay the consummation of the Merger or any of the transactions contemplated by this Agreement (such contracts described in (a)-(l) above, the “ Material Contracts ”). The Company has delivered or made available to the Parent a true, complete and correct copy of each of the Material Contracts.

(v) Each Material Contract set forth on Section 3.01(j)(v) of the Company Disclosure Schedules is in full force and effect and is a legal, valid, and binding agreement of the Company and, to the Knowledge of the Company, of each other party thereto, in each case in all material respects, and is enforceable against the Company and, to the Knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms and in all material respects, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect

relating to creditors’ rights generally and subject to general principles of equity. Each Material Contract not set forth in Section 3.01(j)(v) of the Company Disclosure Schedules , is in full force and effect and is legal, valid, and binding agreement of the Company and, to the Knowledge of the Company, of each other party thereto, enforceable against the Company and, to the Knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights generally and subject to general principles of equity, except for such failures to be in full force and effect, to be legal valid and binding or to be enforceable that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. Neither the Company, nor, to the Knowledge of the Company, any other party to any Material Contract, is in violation or default under any such agreement and, to the Knowledge of the Company, no condition exists that with the passage of time or the giving of notice would cause such a violation of or default under any Material Contract.

(k) Intellectual Property Matters .

(i) Section 3.01(k)(i) of the Company Disclosure Schedules sets forth a true, complete and correct list as of the date hereof of all Registered IP included in (or in the case of Software, covered by) the Company Owned Intellectual Property. In addition, Section 3.01(k)(i) of the Company Disclosure Schedules sets forth, where applicable, (a) the jurisdiction in which each item of such Registered IP has been registered or issued or in which an application for registration or issuance has been filed; (b) the named owner of such Registered IP (if other than the Company); and (c) the registrar or equivalent party with whom such Registered IP is registered or by whom it was issued.

(ii) Company is the sole owner and possesses all right, title and interest in and to each item of Company Owned Intellectual Property that is material to the operation of conduct of the Business free and clear of any Liens (other than Permitted Liens). The Company is not subject to any judgment, order, writ, injunction or decree of any court or any Federal, state, local, foreign or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, or any arbitrator, which restricts or impairs in any material respect the use of any of the Company Owned Intellectual Property.

(iii) Company has not granted to any Person any license, option, consent, right of first or last offer or negotiation or other rights in or to any item of Company Owned Intellectual Property that is material to the operation of the Business except pursuant to a written valid and legally binding license listed on Section 3.01(k)(iii) of the Company Disclosure Schedules in the ordinary course of business. To the Company’s Knowledge , the Company has the right to use all Technology that is material to the operation of the Business or that is required to create, modify, compile, operate or support any Technology incorporated into any product or service offered by Company. The Company has not granted to any third Person any exclusive right with respect to any of the Company Owned Intellectual Property.

(iv) Section 3.01(k)(iv) of the Company Disclosure Schedules sets

forth a true, complete and correct list of all Company Licensed Intellectual Property that is material to the conduct of the Company’s Business as it is currently conducted. Company has the right to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare derivative works of, and to make, have made, sell, convey, transfer and assume (“ Use ”), without payments to any other Person, all Intellectual Property owned by an other Person that is material to the operation of the Business and currently used therein pursuant to a written, valid and binding license (the “ Material Licensed IP ”). Except as set forth in the Section 3.01(k)(iv) of the Company Disclosure Schedules , immediately following the consummation of the transactions contemplated by this Agreement, the Surviving Corporation will have the right to Use and to permit others to Use all Material Licensed IP on identical terms and conditions as the Company enjoyed immediately prior to the Closing without additional fee or expense.

(v) The Company is in material compliance with and has not breached any material term of any agreement under which Company licenses Material Licensed IP (“ Company Licensee Agreements ”). To the Knowledge of the Company, all third Persons that are parties to any agreements under which Company licenses to such Persons any Company Owned Intellectual Property or Company Licensed Intellectual Property (“ Company Licensor Agreements ”) are in material compliance with and have not breached any material term of any such agreements. To the Knowledge of the Company, there are no material disputes regarding the scope of the Company Licensee Agreements or Company Licensor Agreements, performance under such Company Licensee Agreements or Company Licensor Agreements, or with respect to payments under such Company Licensee Agreements or Company Licensor Agreements. To the Knowledge of the Company, no third Person has possession of Intellectual Property that is reasonably necessary for the conduct of the Company’s Business as it is currently conducted without an Company Licensor Agreement. The Merger in and of itself will not result in the termination or breach of any Company Licensor Agreement or Company Licensee Agreement or any material loss or change in the rights or obligations of the Company or any third Person that is a party to a Company Licensee Agreement or Company Licensor Agreement.

(vi) All of the Registered IP reasonably necessary for the conduct of the Business as currently conducted and which otherwise has material value has been duly maintained, is valid and subsisting, in full force and effect, has not been cancelled or abandoned, and has not expired. For each such item of Registered IP, all necessary registration, maintenance and renewal fees in connection therewith have been paid. The Company has no Knowledge of any information, materials, facts or circumstances, that could render invalid or unenforceable, or would adversely effect in any material respect any pending application for any Registered IP, including but not limited to any information or fact that would constitute prior art, or that would suggest an improper or incorrect designation of the inventor of the technology underlying such patent or patent application.

(vii) In each case in which the Company obtained or acquired ownership of the Company Owned Intellectual Property that is material to the operation of the Business from another Person: (i) with respect to Patents or Copyrights, the Company has recorded or had recorded each such assignment of ownership of such Patents and Copyrights to

the Company with the relevant body, including the United States Patent and Trademark Office, the United States Copyright Office, or their respective equivalents in any relevant jurisdiction, in each case to the maximum extent provided for by, and in accordance with, applicable laws and regulations, and (ii) with respect to domain names, the Company has made a formal transfer of the associated name in accordance with the procedure of the registrar or of that jurisdiction.

(viii) The Company has taken all reasonable and necessary measures to protect the Company Owned Intellectual Property that is material to the operation of the Business and their rights therein. Among other things, Company has required its former and current employees, agents, consultants, independent contractors or members of the Company who were or are members of Company management who contributed or are or will contribute in the conception and development of Intellectual Property and third Persons having access to or are or will be contributing to or participating in the conception and development of Company Owned Intellectual Property (collectively, the “ Contributors ”) to execute written agreements in the respective forms previously provided to Parent’s counsel on April 20, 2007 via electronic mail and identified in Section 3.01(k)(viii) of the Company Disclosure Schedules (or providing equivalent or better protection for the Company), and there are no material deviations from the forms of such agreements except as set forth in Section 3.01(k)(viii) of the Company Disclosure Schedules .

(ix) To the Knowledge of the Company, none of the Company’s rights in any Company Owned Intellectual Property that is material to the operation of the Business has been lost or is in jeopardy of being lost through failure to act by the Company except where the Company has made a reasonable business judgment not to protect such Intellectual Property.

(x) As of the date hereof, there is no pending Action against the Company by any Person nor to the Knowledge of the Company any Action threatened in writing by any Person: (i) alleging that the Company, or the Technology, infringes, misappropriates, dilutes or otherwise violates any Intellectual Property rights of any other Person, (ii) challenging the Company’s rights relating to the Company Owned Intellectual Property, or (iii) alleging unfair competition or unfair trade practices under the laws of any jurisdiction and, to the Knowledge of the Company, there is no reasonable basis for a claim regarding any of the foregoing. The Company has no Knowledge of any misrepresentation or failure to disclose any fact or circumstance in any application for any Patents within the Company Owned Intellectual Property that would constitute fraud or a misrepresentation with respect to such application.

(xi) As of the date of this Agreement, the Company has not brought or threatened any Action against any Person that has been abandoned in the last three (3) years or not been finally settled or adjudicated: (i) alleging infringement, misappropriation, dilution or any other violation of the Company Licensed Intellectual Property, and (ii) challenging such Person’s ownership or use of, or the validity, enforceability or registrability of the Company Owned Intellectual Property and, to the Knowledge of the Company, there is no reasonable basis for a material claim regarding any of the foregoing.

(xii) The Merger will not result in the obligation for the Company to

pay any material consideration, royalties or other amounts to any third party in excess of those amounts otherwise owed by the Company immediately prior to the Merger. Further, except as set forth in Section 3.01(k)(xii) of the Company Disclosure Schedules , the Merger in and of itself will not result in: (i) Parent or its Subsidiaries (including the Surviving Corporation) being bound by any material non-competition, exclusivity obligation or similar restrictions relating to the geographical area of operations or scope or type of business pursuant to any agreements or obligations binding on the Company involving payments or revenue in excess of $100,000 annually, or (ii) Parent or its Subsidiaries (including the Surviving Corporation) granting to any third party any rights or licenses to any material Intellectual Property of Parent or any affiliate of Parent (including without limitation a covenant not to sue) pursuant to any agreements or obligations of the Company involving payments or revenue in excess of $100,000 annually.

(xiii) During the 12 months prior to the date of this Agreement, neither the Company, nor to the Company’s Knowledge, its distributors, have received any claims that have a reasonable basis for asserting that there is a material defect in the products or services offered by Company or otherwise related to agents between the Company and its agents on the one hand and Company’s customers on the other hand. To the Company’s Knowledge as of the date hereof, there exists no grounds for a credible and material warranty claim regarding the Company’s products and services. As of the date hereof, the Company has provided to Parent all information about unresolved material bugs and other unresolved material non-conformities in Company’s products and services.

(xvi) Except as set forth on Section 3.01(k)(xvi) of the Company Disclosure Schedules , none of the Company Owned Intellectual Property that is material to the operation of the Business is written or designed to be compliant with, marketed as compliant with, or required to be compliant with any standards or requirements of a standards body, except such as are in compliance with such standards in all material respects.

(xvii) Section 3.01(k)(xvii) of the Company Disclosure Schedules identifies all Software that is open source, public source or freeware, or any modification or derivative thereof, including any version of Software licensed pursuant to any GNU general public license or lesser general public license (collectively, “ Open Source Software ”) that is used in, incorporated into, integrated or bundled with any Company Owned Intellectual Property.

(xviii) No government funding, facilities of a university, college or other educational institution or research center was used in the development of any Company Owned Intellectual Property or Technology that is reasonably necessary for the conduct of the Company’s business as it is currently conducted.

(xix) The management information systems owned, licensed, leased or otherwise held for use by the Company or operated on behalf of the Company, including all computer hardware, software, firmware, and telecommunications systems used in connection with the operation and conduct of the business of the Company as currently conducted, perform in substantial and material conformance with their respective specifications and documentation. Company has provided for archival, back-up, recovery, and restoration of its critical business

data and its management information systems in a manner intended to minimize business interruptions from natural disaster and man-made events in a timely fashion.

(xx) With respect to Technology that (i) had a purchase price or annual license fee of more than $25,000 and (ii) was or is provided to Company by a third Person that is currently supported by such third Person, except as set forth on Schedule 3.01(k)(xx) of the Company Disclosure Schedules the Surviving Corporation will not need to upgrade or replace any such Technology for 12 months after Closing in order to remain under the standard warranty and support terms offered by such third Person in connection with the operation of the Business as currently conducted. All Technology that the Company currently markets and distributes that is material to the Business, performs, in all material respects, the functions set forth in any specification, end-user documentation or other material provided to customers and potential customers of Company upon which such customers and potential customers rely or would reasonably be expected to rely when licensing or otherwise acquiring such Technology and as of the date hereof Company has not been notified, verbally or in writing, that such Technology does not perform as described in this paragraph.

(xxi) All Company Hardware that had a purchase price of more than $25,000 and is used by the Company in its Business is (i) owned by the Company, or leased by the Company pursuant to a valid contract; (ii) adequate for the operation of the business as presently conducted; and (iii) in good working condition (ordinary wear and tear excepted), except for matters of condition that individually or in the aggregate has not had and would not reasonably be expected to have a Material Adverse Affect.

(l) Litigation . Except as set forth on Schedule 3.01(l) of the Company Disclosure Schedules or with respect to matters relating to routine employment or the provision of goods and services in the Ordinary Course of Business where the amounts at issue do not exceed $50,000 individually, (a) there is no Action pending or, to the Knowledge of the Company, threatened in writing by or before a Governmental Entity against the Company or its respective properties (tangible or intangible) or its Directors or corporate officers in their capacities as such or for which the Company is obligated to indemnify a third party, and (b) no Governmental Entity has provided the Company with written notice challenging or questioning the legal right of the Company to conduct its operations as conducted at that time or as presently conducted, that individually or in the aggregate has had or could reasonably be expected to have a Material Adverse Effect. The Company is not subject to (i) any outstanding judgment, order, arbitration ruling or other finding or decree of any Governmental Entity (or arbitral body) or (ii) any settlement or similar agreement or written arrangement with ongoing obligations relating to a dispute with any third party, in each case other than matters relating to routine employment and the provisions of goods and services in the Ordinary Course of Business where the amounts at issue do not exceed $50,000 individually or $500,000 in the aggregate.

(m) Compliance with Laws; Permits .

(i) The Company is, and at all times has been, in material compliance with and to the Knowledge of the Company, no event has occurred with the lapse of time or the

giving of notice or both, would result in the material violation of or default under, any Laws of any Governmental Entity, (other than Environmental Laws, and Laws relating to ERISA and Taxes which are addressed under Sections 3.01(s), 3.01(p), and 3.01(n), respectively) applicable thereto.

(ii) The Company is not subject to reporting or registration requirements under the Exchange Act. The Company is in possession of all material authorizations, licenses, permits, certificates, approvals and clearances of any Governmental Entity (collectively “ Permits ”) (other than Permits required under Environmental Laws, which are addressed under Section 3.01(s)) necessary for the Company to own, lease and operate its properties or to carry on its businesses substantially as it is being conducted as of the date of the Agreement, and, to the Knowledge of the Company, all such Permits are valid and in full force and effect.

(n) Taxes .

(i) All Tax Returns required to have been filed by or with respect to the Company have been timely and properly filed (taking into account any extension of time to file granted or obtained), and such Tax Returns are true, correct and complete in all material respects.

(ii) All Taxes of the Company that have become due or payable have been timely paid. The unpaid Taxes of the Company attributable to a taxable period or portion thereof ending on or before the Closing Date (a “ Pre-Closing Tax Period ”) will not, as of the Closing Date, exceed the reserve for Tax liability (other than a reserve for deferred Taxes established to reflect timing differences between book and Tax income) reflected in the Company Balance Sheet plus Taxes incurred after the Balance Sheet Date from activities in the Ordinary Course of Business.

(iii) No deficiency for any amount of Tax has been asserted or assessed by a Taxing Authority in writing against the Company that has not been satisfied by payment, settled or withdrawn. There are no Tax liens on the assets of the Company other than Permitted Liens.

(iv) The Company (i) has withheld from any employee, customer, independent contractor, creditor, shareholder and any other applicable payee proper and accurate amounts for all taxable periods in compliance with all Tax withholding provisions of applicable federal, state, local and foreign laws, (ii) has remitted, or will remit on a timely basis, such amounts to the appropriate Taxing Authority.

(v) No Tax audits or other administrative or judicial Tax proceedings with respect to Taxes of the Company are pending or are being conducted. There is no claim or assessment pending, or, to the Knowledge of the Company, threatened against the Company for any alleged deficiency in Taxes. The Company has not waived any statute of limitations in respect of Taxes or agreed to any extension thereof that is currently in effect. No claim has been

made by a Taxing Authority in a jurisdiction where the Company does not file a Tax Return that the Company is or may be subject to taxation by that jurisdiction.

(vi) The Company has not (i) consented at any time under former Section 341(f)(1) of the Code to have the provisions of former Section 341(f)(2) of the Code apply to any disposition of any assets; (ii) agreed, or is required, to make any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise; (iii) made an election, or is required, to treat any asset as owned by another person pursuant to the provisions of former Section 168(f) of the Code or as tax-exempt bond financed property or tax-exempt use property within the meaning of Section 168 of the Code; (iv) acquired or owns any assets that directly or indirectly secure any debt the interest on which is tax exempt under Section 103(a) of the Code; (v) distributed the stock of any corporation or had its stock distributed by another person in a transaction satisfying or intending to satisfy the requirements of Section 355 of the Code; or (vii) made any of the foregoing elections or is required to apply any of the foregoing rules under any comparable foreign, state or local Tax provision.

(vii) The Company is not obligated to make any payments, or is a party to any agreement or agreements that, individually or collectively, provide for the payment by any Taxpayer of any amount of salaries or other compensation for services (i) that is not deductible under Sections 162(a)(1) or 404 of the Code or (ii) that is an “excess parachute payment” pursuant to Section 280G of the Code.

(viii) The Company is not a party to any Tax sharing or Tax indemnity agreements or similar arrangements pursuant to which the Parent Indemnified Parties would have any obligation to make payments after Closing.

(ix) The Company has not been a member of any affiliated group of corporations within the meaning of Section 1504 of the Code or of any group that has filed a combined, consolidated or unitary state or local return. The Company does not have any liability for the Taxes of any other person under Treasury Regulation Sections 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract or otherwise.

(x) The Company is not and has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

(xi) The Company shall not be required to include in taxable period ending after the Closing Date taxable income attributable to income of any C Corp Taxpayer that accrued in a Pre-Closing Tax Period but was not recognized in any Pre-Closing Tax Period by reason of (i) the installment method of accounting, (ii) the long-term contract method of accounting, or (iii) a “closing agreement” as described in Section 7121 of the Code (or any provision of any foreign, state or local Tax law having similar effect).

(xii) The Company has not participated in a “listed transaction” within the meaning of Treasury Regulation Section 1.6011-4(b)(2). The Company has disclosed on its U.S. federal

income Tax Returns all positions taken therein that could give rise to a substantial understatement of U.S. federal income Tax within the meaning of Section 6662 of the Code.

(o) Insurance . Section 3.01(o) of the Company Disclosure Schedules sets forth a true, complete and correct list of all material insurance policies or binders maintained by or for the benefit of the Company and its Directors, officers, employees or agents. The Company has made available to the Parent true, complete and correct copies of such policies and binders. (a) All such policies or binders are in full force and effect and no premiums due and payable thereon are delinquent, except for any expiration thereof in accordance with the terms thereof, (b) there are no pending material claims against such insurance policies or binders by the Company as to which the insurers have denied Liability, (c) the Company is not in breach of, nor default under, any such material insurance policy and (d) there exist no material claims under such insurance policies or binders that have not been properly and timely submitted by the Company to its insurers. Except as set forth in the policies or binders, the insurance coverage provided by such policies or insurance will not terminate or lapse by reason of the transactions contemplated by this Agreement and, following the Closing Date, the Company will continue to be covered under such policies for events occurring prior to the Closing Date. No such policy provides for or is subject to any currently enforceable retroactive rate or premium adjustment or loss sharing arrangement arising wholly or partially out of events arising prior to the date of the Agreement. Section 3.01(o) of the Company Disclosure Schedules sets forth a list of all claims (other than insurance claims made by or for the benefit of employees) in excess of $25,000 individually submitted to insurers during the past 18-month period ending on the date hereof.

(p) Employee Benefit Plans .

(i) Section 3.01(p) of the Company Disclosure Schedules hereto contains a true, complete and correct list of each deferred compensation and each bonus or other incentive compensation, stock purchase, stock option and other equity or equity-based compensation plan, program, agreement or arrangement; each severance or termination pay, medical, surgical, hospitalization, life insurance and other “welfare plan,” fund or program (within the meaning of Section 3(1) of the ERISA); each profit-sharing, stock bonus or other “pension plan,” fund or program (within the meaning of Section 3(2) of ERISA); each employment, “change in control”, termination or severance agreement; and each other employee benefit plan, fund, program, agreement or arrangement, in each case, that is, or was within the past three years, sponsored, maintained or contributed to or required to be contributed to by the Company or by any trade or business, whether or not incorporated (an “ ERISA Affiliate ”), that together with the Company would be deemed a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code, or to which the Company or an ERISA Affiliate is party, whether written or oral, for the benefit of any current or former employee, officer, director or consultant of the Company (the “ Employee Plans ”). Neither the Company nor any ERISA Affiliate has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change, in any material way, any existing Employee Plan that would affect any current or former employee, officer, director or consultant of the Company and no condition exists which would prevent the Company from terminating any

Employee Plan without Liability to the Company (other than for benefits accrued at the time of such termination).

(ii) With respect to each Employee Plan, the Company has heretofore made available to the Parent a current, true, complete and correct copy (or, to the extent no such copy exists, an accurate written description) thereof (including any amendments thereto) and, to the extent applicable: (i) any related trust agreement or other funding instrument; (ii) the most recent IRS determination opinion or letter and any pending request for such determination letter; (iii) any summary plan descriptions or other reports and summaries required under ERISA or the Code; (iv) any material written communication (or a description of any material oral communications) to participants concerning the Employee Plans; (v) for the two most recent years for which such documents are available, the Form 5500 and attached schedules, audited financial statements, actuarial valuation reports and any attorney’s response to any auditor’s request for information; (vi) copies of all material documents and correspondence relating to any Employee Plan received from or provided to the IRS; (vii) the most recent annual 401(k) and 401(m) nondiscrimination tests performed under the Code; and (viii) all summaries furnished employees, officers and directors of the Company of all incentive compensation, other plans and fringe benefits for which a summary plan description is not required. Each Employee Plan intended to be “qualified” within the meaning of Section 401(a), Section 401(k), Section 401(m) or Section 4975(e)(7) of the Code has been determined to be “qualified” by the Internal Revenue Service and has received a favorable determination letter or opinion letters, as applicable, as to its tax qualified status and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Code and to the Company’s Knowledge, no event has occurred or circumstance that would reasonably be expected to affect such qualified status. No Employee Plan is a voluntary employees’ beneficiary association under Section 501(c)(9) of the Code.

(iii) Neither the Company nor any ERISA Affiliate sponsors, maintains, contributes to or has an obligation to contribute to, or has at any time within the last six years sponsored, maintained, contributed to or had an obligation to contribute to, any “multiemployer plan,” as such term is defined in Section 3(37) or Section 4001(a)(3) of ERISA or comparable provisions of any other applicable Law or any pension plan (as defined in Section 3(2) of ERISA) subject to Section 302 or Title IV of ERISA or Section 412 of the Code.

(iv) Each Employee Plan has been operated and administered in all material respects in accordance with its terms and applicable Law, including, but not limited to, ERISA and the Code, and all contributions required to be made under the terms of any of the Employee Plans as of the date of the Agreement have been timely made or, if not yet due, have been properly reflected on the Financial Statements except for any failure to do so which would not result in any material Liability to the Company or an ERISA Affiliate.

(v) No Employee Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company for periods extending beyond their retirement or other termination of service, other than coverage mandated by applicable statute.

(vi) The consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event, (a) entitle any current or

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