AGREEMENT AND PLAN OF MERGER

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Exhibit A                  Voting Letter Agreement

This Agreement and Plan of Merger (this “ Agreement ”) dated as of April 11, 2007, is entered into by and among Allen Systems Group, Inc. (the “ Parent ”), a Delaware corporation, ASG M&A, Inc. (the “ Purchaser ”), a Delaware corporation and wholly-owned subsidiary of the Parent, and Mobius Management Systems, Inc. , (the “ Company ”), a Delaware corporation. Certain capitalized terms used in this Agreement are defined in Section 10.1 of this Agreement.

WHEREAS , the respective boards of directors of the Company, the Parent and the Purchaser have deemed it advisable and in the best interests of their respective corporations and stockholders to approve the acquisition of the Company by the Parent upon the terms and conditions set forth herein;

WHEREAS , the respective boards of directors of the Parent, the Purchaser, and the Company have approved this Agreement and the Merger (as defined in Section 1.1 hereof) in accordance with the General Corporation Law of the State of Delaware (“ DGCL ”), and upon the terms and subject to the conditions set forth herein;

WHEREAS , the board of directors of the Company has approved this Agreement and has determined that the consideration to be paid for each share of the issued and outstanding common stock, $0.0001 par value per share, of the Company (“ Common Stock ”) in the Merger is fair to the holders thereof and has resolved to recommend that such holders adopt this Agreement upon the terms and subject to the conditions set forth herein; and

WHEREAS , the Parent and the Purchaser have required as a condition and an inducement to their willingness to enter into this Agreement that concurrently with the execution and delivery of this Agreement and incurring the obligations set forth herein, that certain stockholders of the Company enter into, and such stockholders contemporaneously with the execution of this Agreement have entered into, a Voting Letter Agreement in substantially the form attached hereto as Exhibit A (“ Voting Agreement ”) pursuant to which such stockholders have agreed, among other things, (i) to vote the shares of Common Stock held by them in favor of the adoption of this Agreement and, under certain circumstances, to grant the Parent their proxy to vote such shares, and (ii) not to transfer, sell, hypothecate, or otherwise dispose of their beneficial ownership of, or their ability to vote, the Common Stock held by them as of the date hereof or which they may acquire hereafter.

NOW, THEREFORE , in consideration of the foregoing, and of the mutual representations, warranties, covenants, and agreements herein contained, the parties hereto hereby agree as follows:

1.1   The Merger.  Subject to the terms and conditions of this Agreement, at the Effective Time, the Company and the Purchaser shall consummate a merger (“ Merger ”) pursuant to which (i) the Purchaser shall be merged with and into the Company in accordance with the provisions of the DGCL and the separate corporate existence of the Purchaser shall thereupon cease, (ii) the Company shall be the successor or surviving corporation in the Merger and shall continue to be governed by the Laws of the State of Delaware, and (iii) the separate corporate existence of the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger. The corporation surviving the Merger is sometimes hereinafter referred to as the “ Surviving Corporation .” The Merger will be

1.2   Time and Place of Closing . The closing (the “ Closing ”) of the Merger and the other transactions contemplated hereby (collectively, the “ Transactions ”) will take place at the offices of Carlton Fields, P.A., Corporate Center Three, 4221 W. Boy Scout Boulevard, Tampa, Florida 33607, at 10:00 a.m. local time on a date that is not later than the second Business Day following the satisfaction or waiver of all of the conditions set forth in Article 8 (other than delivery of items to be delivered at the Closing and other than satisfaction of those conditions that by their nature are to be satisfied at Closing, it being understood that the occurrence of the Closing shall remain subject to the delivery of such items and the satisfaction or waiver of such conditions at Closing) (such date, the “ Closing Date ”).

1.3   Effective Time.  On the Closing Date, the Company and the Purchaser shall jointly prepare and cause to be filed with the Secretary of State of the State of Delaware as provided by the DGCL an appropriate Certificate of Merger (the “ Certificate of Merger ”). The Merger and the other Transactions shall become effective on the date and time at which the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware in accordance with the DGCL (the “ Effective Time ”).

2.1   Certificate of Incorporation. At the Effective Time, the certificate of incorporation of the Company shall be restated and amended to read in its entirety as the certificate of incorporation of the Purchaser, as in effect immediately prior to the Effective Time, except that the name of the Surviving Corporation shall remain “Mobius Management Systems, Inc.” and the provisions of the certificate of incorporation of the Purchaser relating to the incorporator of the Purchaser shall be omitted, and as so restated and amended shall be the certificate of incorporation of the Surviving Corporation, until thereafter amended as provided by applicable Law and such certificate of incorporation.

2.2   Bylaws. The bylaws of the Purchaser, as in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Corporation, except as to the name of the Surviving Corporation, which shall be “Mobius Management Systems, Inc.,” until thereafter amended as provided by applicable Law, the certificate of incorporation of the Surviving Corporation, and such bylaws.

2.3   Directors an Officers of the Surviving Corporation. The directors of the Purchaser immediately prior to the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Corporation, and the officers of the Purchaser immediately prior to the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation, in each case until their respective successors shall have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the Surviving Corporation’s certificate of incorporation and bylaws.

3.1   Conversion of Capital Stock.  Subject to the provisions of this Article 3, at the Effective Time, by virtue of the Merger and without any action on the part of the holders of the shares of Common

Stock or the holders of shares of common stock, $0.01 par value per share, of the Purchaser (“ Purchaser Common Stock ”):

(a)   Purchaser Common Stock. Each share of the Purchaser Common Stock issued and outstanding immediately prior to the Effective Time shall be converted automatically into and become one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation. Each certificate evidencing ownership of the Purchaser Common Stock immediately prior to the Effective Time shall, as of the Effective Time, evidence ownership of such shares of the Surviving Corporation.

(b)   Parent Common Stock. Each issued and outstanding share of common stock, no par value per share, of the Parent will remain issued and outstanding.

(c)   Conversion of Common Stock.  Each outstanding share (including any Restricted Shares) of Common Stock (other than shares of Common Stock to be cancelled in accordance with Section 3.2 and other than Dissenting Common Stock) shall cease to be outstanding and shall be converted automatically into, and represent the right to receive the Merger Consideration, payable to the holder thereof in cash, without interest. From and after the Effective Time, all such shares of Common Stock shall no longer remain outstanding and shall automatically be cancelled and retired, and each holder of a certificate representing any such shares of Common Stock shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration therefor upon the surrender of such certificate in accordance with Section 3.6, without interest thereon.

3.2   Cancellation of Treasury Stock and Parent-Owned Stock. All shares of Common Stock that are owned by the Company as treasury stock and any shares of Common Stock owned by the Parent, the Purchaser or any other wholly-owned Subsidiary of the Parent shall be cancelled and retired, and no consideration shall be delivered in exchange therefor.

3.3   Adjustments to Merger Consideration. If, between the date of this Agreement and the Effective Time, the Company changes the number of shares of Common Stock issued and outstanding prior to the Effective Time as the result of any stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Common Stock), reclassification, reorganization, recapitalization or other like change with respect to Common Stock (each, an “ Adjustment ”), the Merger Consideration shall be adjusted accordingly, without duplication, to provide the holders of shares of Common Stock with the same economic effect as contemplated by this Agreement prior to such Adjustment.

3.4   Derivative Securities.

(a)   The Board of Directors of the Company shall take all actions necessary to cause, at the Effective Time, each outstanding option, stock equivalent right or other right to acquire shares of Common Stock (an “ Option ” or “ Options ”) granted under the Option Plans whether or not then exercisable or vested, except as set forth on Section 3.4(a) of the Company Disclosure Schedule, to be 100% exercisable and vested and to be cancelled and, in consideration of such cancellation, at the Effective Time the Parent shall, or shall cause the Surviving Corporation to, pay to such holders of Options, an amount in respect thereof equal to the product of (x) the excess, if any, of the Merger Consideration over the exercise price of each such Option and (y) the number of shares of Common Stock subject to such Option (such payment, if any, to be net of applicable withholding and excise taxes). As of the Effective Time, all Option Plans and any agreement or plan relating to Options shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect to the capital stock of the Company or any Company Subsidiary, including

(b)   (i) Immediately prior to the Effective Time, each restricted stock unit (“ RSU ”) issued by the Company under its Option Plans that is outstanding as of the date of this Agreement, whether or not vested and subject to conversion into Common Stock under its Option Plans, shall be converted automatically into one share of Common Stock and shall be entitled only to receive the Merger Consideration, and (ii) each restricted share of Common Stock issued by the Company pursuant to any applicable restricted stock award agreement of the Company and subject to any vesting, repurchase or other lapse restrictions thereunder (each, a “ Restricted Share ”) that is outstanding as of the date of this Agreement, whether or not vested or subject to repurchase, shall automatically vest and become free of such restrictions and right of repurchase as of the Effective Time and shall, as of the Effective Time, be cancelled and converted into the right to receive the Merger Consideration.

(c)   The Board of Directors of the Company shall take all action necessary to cause (i) any “Offering Periods” (as defined in the 1998 Employee Stock Purchase Plan, as amended (the “ ESPP ”)) then in progress to be shortened by setting a new “Exercise Date” (as defined in the ESPP) as of a date prior to the Effective Time, and any Offering Periods then in progress shall end on such new Exercise Date, and (ii) the termination of the ESPP effective as of a time following such new Exercise Date but at or prior to the Effective Time of the Merger, as may be requested by the Parent.

3.5   Dissenting Common Stock.  

(a)   Notwithstanding anything in this Agreement to the contrary, Common Stock outstanding immediately prior to the Effective Time which is held by a holder who has not voted in favor of the Merger or consented thereto in writing and who has complied with Section 262 of the DGCL (“ Dissenting Common Stock ”) shall not be converted into the right to receive the Merger Consideration, unless such holder fails to perfect or withdraws or otherwise loses its right to appraisal. A holder of Dissenting Common Stock shall be entitled to receive payment of the appraised value of the Common Stock held by it in accordance with Section 262 of the DGCL, unless, after the Effective Time, such holder fails to perfect or withdraws or loses its right to appraisal, in which case such Common Stock shall be converted into and represent only the right to receive the Merger Consideration, without interest thereon, upon surrender of the Certificate or Certificates representing such Common Stock pursuant to Section 3.6.

(b)   The Company shall give the Parent (i) prompt notice of any written demands for appraisal of any Common Stock received by the Company pursuant to Section 262 of DGCL, withdrawals of such demands, and any other instruments served pursuant to the DGCL and received by the Company relating to rights of appraisal and (ii) the opportunity to participate in the conduct of all negotiations and proceedings with respect to demands for appraisal under the DGCL. Except with the prior written consent of the Parent, the Company shall not voluntarily make any payment with respect to any demands for appraisal or settle or offer to settle any such demands for appraisal.

3.6   Exchange of Certificates.  

(a)   Paying Agent.  Prior to the Effective Time, the Parent shall designate a national bank or trust company (which shall be reasonably acceptable to the Company) to act as agent for the holders of shares of Common Stock in connection with the Merger (the “ Paying Agent ”) and to receive

(b)   Exchange Procedures. Promptly after the Effective Time, but in no event more than five (5) Business Days, the Parent shall cause the Paying Agent to mail to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented issued and outstanding shares of Common Stock (the “ Certificates ”) whose shares were converted pursuant to Section 3.1 into the right to receive the Merger Consideration (i) a letter of transmittal in customary form, mutually agreed to by the Company and the Parent (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Paying Agent) and (ii) instructions for effecting the surrender of the Certificates in exchange for payment of the Merger Consideration. After the Effective Time, upon surrender of a Certificate for cancellation to the Paying Agent or to such other agent or agents as may be appointed by the Parent, together with such transmittal materials, properly and duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each share of Common Stock formerly represented by such Certificate or Certificates, and the Certificate or Certificates so surrendered shall forthwith be cancelled, and the holder of such Certificate shall be paid promptly in exchange therefor cash in an amount equal to the Merger Consideration that such holder has the right to receive pursuant to the provisions hereof. If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition precedent of payment that (x) the Certificate so surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and (y) the Person requesting such payment shall have paid any transfer and other taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate surrendered or shall have established to the satisfaction of the Surviving Corporation that such tax either has been paid or is not required to be paid. Until surrendered as contemplated by this Section 3.6(b), neither the Parent nor the Purchaser shall be obligated to deliver the Merger Consideration to the holder of shares of Common Stock and, after the Effective Time, each Certificate shall be deemed after the Effective Time to represent only the right to receive the Merger Consideration, without interest thereon.

(c)   Lost, Stolen, or Destroyed Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit (in a form reasonably satisfactory to the Purchaser) of

(d)   Transfer Books; No Further Ownership Rights in Capital Stock. At the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of shares of Common Stock on the records of the Company. From and after the Effective Time, the holders of Certificates evidencing ownership of shares of Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Common Stock, except as otherwise provided for herein or by applicable Law. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Article 3.

(e)   Termination of Fund; No Liability. Subject to applicable Law, any portion of the Exchange Fund (including the proceeds of any investments thereof) which had been made available to the Paying Agent pursuant to Section 3.6 of this Agreement that remain unclaimed by the former stockholders of the Company for one year after the Effective Time shall be paid to the Parent. Any former stockholders of the Company who have not theretofore complied with this Article 3 shall thereafter look only to the Parent (subject to abandoned property, escheat or other similar laws) for payment of the Merger Consideration, without any interest thereon. Any other provision of this Agreement notwithstanding, none of the Parent, the Purchaser, the Company, the Surviving Corporation, or the Paying Agent shall be liable to a holder of the Common Stock for any amount paid or property delivered in good faith to a public official pursuant to any abandoned property, escheat, or similar Law. Any amounts remaining unclaimed by any holder of Common Stock immediately prior to the time when such amounts would otherwise escheat to or become the property of a federal, state, or local government authority or court or administrative or regulatory agency, shall, to the extent permitted by Law, become the property of the Parent, free and clear of all claims or interest of any Person previously entitled thereto.

(f)   Withholding Taxes.     Each of the Surviving Corporation, the Paying Agent, and the Parent shall be entitled to deduct and withhold from the Merger Consideration otherwise payable hereunder to any Person such amounts as it is required to deduct and withhold pursuant to any applicable Tax Laws. To the extent such amounts are deducted, withheld, and paid to the appropriate Governmental Entity, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to such Person.

3.7   Subsequent Actions. If at any time after the Effective Time, the Surviving Corporation shall determine that any actions are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or the Purchaser acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to take all such actions as may be necessary or desirable to vest all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

Except as (a) disclosed in Company SEC Documents filed within 12 months prior to the date of this Agreement or (b) set forth in the disclosure schedule, dated as of the date of this Agreement, that has been delivered by the Company to the Parent and the Purchaser prior to the execution and delivery of this Agreement (the “ Company Disclosure Schedule ” ), the Company hereby represents and warrants to the Parent and the Purchaser as follows:

4.1   Organization, Standing, and Power. The Company is a corporation duly incorporated, validly existing, and in good standing under the Laws of the State of Delaware, and has the requisite corporate authority to own and operate its properties and to carry on its business as they are now being operated and carried on. The Company is duly qualified or licensed to do business as a foreign corporation and is in good standing in each jurisdiction where the character of the property owned or leased by it or the nature of its business makes such qualification necessary, except where the failure to be so qualified or licensed and in good standing would not, individually or in the aggregate, have a Material Adverse Effect on the Company. The Company made available to the Parent complete and correct copies of the Company’s certificate of incorporation (“ Certificate of Incorporation ”) and bylaws (“ Bylaws ” ), and such Certificate of Incorporation and Bylaws are in full force and effect.

(a)   The Company has the requisite corporate power and authority to execute and deliver this Agreement and, subject to the requisite approval of this Agreement by the holders of the issued and outstanding Common Stock with respect to the Merger, to consummate the Transactions, and to perform its obligations under this Agreement. The execution, delivery, and performance by the Company of this Agreement, and the consummation of the Transactions, including the Merger, have been duly authorized by all necessary corporate action in respect thereof on the part of the Company, subject in the case of the consummation of the Merger to the requisite adoption of the Agreement by the holders of the outstanding shares of Common Stock. Except for the approval of this Agreement and adoption of the Merger by the requisite holders of the issued and outstanding shares of Common Stock, no other corporate action is required on the part of the Company to authorize the consummation of the Transactions. This Agreement has been duly executed and delivered by the Company and, assuming due and valid authorization, execution, and delivery hereof by the Parent and the Purchaser, this Agreement is a valid and binding obligation of the Company enforceable against it in accordance with their respective terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, or similar Laws affecting creditors’ rights generally and except that the availability of the equitable remedy of specific performance and injunctive relief is subject to the discretion of the court before which any proceedings may be brought (the “ Bankruptcy and Equity Exceptions ”)).

(b)   Neither the execution and delivery by the Company of this Agreement, or the consummation by the Company of the Transactions, nor compliance by the Company with any of the terms or provisions herein, will: (i) conflict with or violate any provision of its Certificate of Incorporation or Bylaws, (ii) violate, conflict with, or result in a breach of any term, condition, or provision of, or constitute a default (with or without notice or the lapse of time, or both) under, or give rise to any right of termination, cancellation, or acceleration of any obligation or the loss of a benefit under, or require a consent pursuant to, or result in the creation of any Lien upon any material assets or properties of the Company or any Company Subsidiary pursuant to, any of the terms, provisions, or conditions of any loan or credit agreement, note, bond, mortgage, indenture, deed of trust, license, agreement, contract, lease, Permit, concession, plan, or other instrument or obligation to which the

4.3   Capitalization.

(a)   The authorized capital stock of the Company consists of 40,000,000 shares of Common Stock. As of the date of this Agreement, (i) 25,039,621 shares of Common Stock are issued, 19,685,398 shares of Common Stock are outstanding, 5,354,223 shares of Common Stock are held as treasury shares, and 13,425 Restricted Shares are outstanding, and (ii) a sufficient number of shares of Common Stock were reserved for issuance pursuant to the Option Plans and the ESPP. All of the outstanding shares of the Company’s capital stock are, and all shares of Common Stock which may be issued pursuant to the exercise of outstanding Options will be, when issued in accordance with the respective terms and conditions specified in the instruments pursuant to which they are issuable, duly authorized, validly issued, fully paid and non-assessable and not subject to or issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. There is no indebtedness having general voting rights (or convertible into securities having such rights) (“ Voting Debt ”) of the Company or any Company Subsidiary issued and outstanding. Except for Options to purchase 2,967,365 shares of Common Stock and 2,100 RSUs or as set forth in Section 4.3(a) of the Company Disclosure Schedule, (i) there are no existing options, warrants, calls, preemptive rights, subscriptions or other rights, agreements, arrangements or commitments of any kind relating to the issued or unissued capital stock of the Company or any Company Subsidiary obligating the Company or any Company Subsidiary to issue, transfer or sell or cause to be issued, transferred or sold any shares of capital stock or Voting Debt of, or other equity interest in, the Company or any Company Subsidiary or securities convertible into or exchangeable for such shares or equity interests, or obligating the Company or any Company Subsidiary to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement or commitment, (ii) there are no outstanding agreements, arrangements, undertakings, or commitments of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Common Stock or the capital stock of the Company or any Company Subsidiary or any Affiliate of the Company, and (iii) there are no outstanding contractual obligations to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Company Subsidiary or any other entity. Neither the Company nor any Company Subsidiary has outstanding or authorized any phantom stock or any stock appreciation, profit participation or similar rights. No shares of Common Stock are owned by any Company Subsidiary.

(b)   The Company has filed with the SEC complete and correct copies of each of the Option Plans and the ESPP, including all amendments thereto. Section 4.3(a) of the Company Disclosure Schedule sets forth, a complete and correct list of all outstanding Options to purchase capital stock of the Company, including with respect to each such Option, the number of shares of Common Stock issuable thereunder, the name of the holder, the grant date, the exercise price per share, the vesting schedule (including any portion that would become vested as a result of the Transactions) and the expiration date of each such Option, and whether the Option is an “incentive stock option” under Section 422 of the Code

(c)   There are no voting trusts or other agreements or understandings to which the Company or any Company Subsidiary is a party with respect to the voting of the capital stock of the Company or any of the Company Subsidiaries and there are no registration rights agreements relating to any equity or debt securities of the Company or any Company Subsidiary. All of the Common Stock and Options have been issued in compliance with all applicable federal and state securities Laws, except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company.

4.4   Subsidiaries and Affiliates.  

(a)   Section 4.4(a) of the Company Disclosure Schedule sets forth, as of the date hereof, the name, the jurisdiction of incorporation or organization, and the authorized and outstanding capital of each Company Subsidiary. Other than with respect to the Company Subsidiaries, the Company does not own, directly or indirectly, any capital stock or other equity securities of any Person or have any direct or indirect equity interest in any business other than publicly-traded securities constituting less than two percent of the outstanding equity of the issuing entity. All of the outstanding capital stock or other equity or ownership interests of each Company Subsidiary is owned directly by the Company or a Company Subsidiary free and clear of all material Liens (other than Permitted Liens), preemptive rights, and of any other material limitation or restriction, and is validly issued, fully paid and nonassessable, and there are no outstanding options, rights or agreements of any kind relating to the issuance, sale or transfer, or voting of, any capital stock of any such Company Subsidiary to any Person except the Company or another Company Subsidiary.

(b)   Each Company Subsidiary (i) is duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation or organization, (ii) has the requisite corporate power and authority to own and operate its properties and carry on its business as it is now being conducted and carried on, and (iii) is duly qualified or licensed to do business as a foreign Person and is in good standing in each jurisdiction where the character of the property owned or leased by it or the nature of its business makes such qualification or license is necessary, except where the failure to be so qualified or licensed and in good standing would not, individually or in the aggregate, have a Material Adverse Effect on the Company. The Company has made available to the Parent complete and correct copies of the certificate of incorporation and bylaws (or similar organizational documents) of each Company Subsidiary as currently in effect.

4.5   Board Approvals. The Company’s board of directors, at a meeting duly called and held, has unanimously (a) determined that this Agreement and the Transactions, including the Merger, are advisable and fair to and in the best interests of the Company and its stockholders, (b) duly and validly approved and taken all corporate action required to be taken by the Company’s board of directors to authorize the consummation of the Transaction, and (c) resolved to recommend that the stockholders of the Company adopt this Agreement. None of the aforesaid actions by the Company’s board of directors has been amended, rescinded or modified as of the date hereof.

4.6   Required Vote. Assuming the accuracy of the representations and representations set forth in Section 5.7 hereof, the affirmative vote of the holders of a majority of the shares of Common Stock outstanding as of the record date for the meeting of the Company’s stockholders to vote to adopt this Agreement is the only vote of the holders of any class or series of the Company’s capital stock necessary to approve the Merger and adopt this Agreement (“ Company Stockholder Approval ”). The Company has been advised that certain directors, executive officers and certain significant stockholders of

4.7   Company SEC Documents.

(a)   The Company has (i) made available to the Parent complete and correct copies of   the Company’s annual reports on Form 10-K for its fiscal years ended June 30, 2006, 2005 and 2004, and (ii) timely filed (A) its quarterly reports on Form 10-Q for its fiscal quarters ended December 31, 2006 and September 30, 2006, (B) its proxy or information statements relating to meetings of, or actions taken without a meeting by, the stockholders of the Company since June 30, 2005, and (C) all reports, schedules, forms, filings, registration statements and other documents (including all exhibits, post-effective amendments and supplements thereto) required to be filed or submitted by it, including all reports filed by it on Form 8-K with the SEC, since June 30, 2005 (the documents referred to in this Section 4.7(a), together with all information incorporated by reference therein in accordance with applicable SEC regulations, are collectively referred to in this Agreement as the “ Company SEC Documents ”).

(b)   As of their respective filing dates or effective dates, as appropriate, each of the Company SEC Documents complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “ Securities Act ”), or the Securities Exchange Act of 1934, as amended (“ Exchange Act ”), as the case may be, and the rules and regulations promulgated thereunder. No Company SEC Document, as of its filing date or effective date, as appropriate, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading (except to the extent corrected, amended, revised, or superceded by a Company SEC Document filed prior to the date of this Agreement). The Company has made available to the Parent copies of all comment letters received by the Company from the SEC since January 1, 2005 relating to the Company SEC Documents, together with all written responses of the Company thereto. There are no outstanding or unresolved comments in any such comment letters received by the Company from the SEC. As of the date of this Agreement, to the Knowledge of the Company, none of the Company SEC Documents is the subject of any ongoing review by the SEC. None of the Company Subsidiaries is required to file or submit   any forms, reports, or other documents with the SEC.  

4.8   Financial Statements.  

(a)   The Financial Statements, including in each case, any related notes: (i) comply, as of their respective dates of filing with the SEC, in all material respects, with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, (ii) were prepared in accordance with United States generally accepted accounting principles (“ GAAP ”) (except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments) applied on a consistent basis during the period involved (or except as may be stated in the notes thereto) and (iii) fairly present, in all material respects (except as may be stated in the notes thereto), the consolidated financial position at the date thereof and the consolidated results of operations and cash flows (and changes in financial position, if any) of the Company and its consolidated Subsidiaries for the periods referred to therein, subject, with respect to interim unaudited financial statements, to normal and recurring year-end adjustments that are not reasonably likely to be material in amount.

(b)   The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to

(c)   Except as disclosed in the Company SEC Documents or in the Company Disclosure Schedule, since June 30, 2004, neither the Company nor any Company Subsidiary has received any written notification from its independent auditors, any Governmental Entity or any other Person of a “material weakness” in the Company’s internal controls. For purposes of this Agreement, the term “ material weakness ” shall have the meaning assigned to such term in the Statements of Auditing Standards 60, as in effect on the date hereof.

(d)   The audit committee of the Company’s board of directors includes an Audit Committee Financial Expert, as defined by Item 401(h)(2) of Regulation S-K.

(e)   The Company has adopted a code of ethics, as defined by Item 406(b) of Regulation S-K, for senior financial officers, applicable to its principal financial officer, comptroller or principal accounting officer, or Persons performing similar functions. The Company has promptly disclosed any change in or waiver of the Company’s code of ethics with respect to any such Persons, as required by Section 406(b) of the Sarbanes-Oxley Act of 2002, as amended. To the Knowledge of the Company, there have been no violations of any provisions of the Company’s code of ethics by any such Persons.

4.9   Absence of Certain Changes or Events. Since December 31, 2006 (the “ Balance Sheet Date ”): (i) the Company and the Company Subsidiaries have conducted their respective businesses in all material respects only in the ordinary course of business, (ii) there has not been any damage, destruction, or other casualty loss (whether or not covered by insurance) or any action, circumstance, event, change, development, or occurrence which in any case has had, individually or in the aggregate, a Material Adverse Effect on the Company, and (iii) neither the Company nor any Company Subsidiary has taken any action, or failed to take any action which action or failure, if taken after the date hereof, would have required the consent of the Parent under Section 6.1, except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company.

4.10   No Undisclosed Liabilities.   Except (a) for Taxes (which are addressed in Section 4.13 hereof), (b) as disclosed in the Financial Statements (or in the footnotes thereto) or otherwise in the Company SEC Documents, and (c) for liabilities and obligations (i) incurred in the ordinary course of business between the Balance Sheet Date and the date of this Agreement, (ii) arising under this Agreement or in connection with the Transactions (including, without limitation, liabilities relating to any legal, investment banking, or other professional advisory fees and expenses (in the case of the fees and expenses of the Company Financial Advisor, pursuant to the Company’s engagement letter with the Company Financial Advisor in effect as of the date hereof and a copy of which has been made available to the Parent) incurred by the Company or any of the Company Subsidiaries), (iii) as disclosed in Section 4.10 of the Company’s Disclosure Schedule, and (iv) relating to for the performance of obligations of the Company or any of the Company Subsidiaries pursuant to the express terms of any contract or agreement to which the Company or any such Company Subsidiary is a party as of the date hereof, neither the Company nor any Company Subsidiary has (x) any liabilities required by GAAP to be reflected on a consolidated balance sheet or any notes to the consolidated financial statements of the Company and the Company Subsidiaries that, individually or in the aggregate, would have a Material Adverse Effect on the Company, or (y) any material off-balance sheet financing transactions, arrangements, obligations (including contingent obligations) or other relationships with entities or others (“ Off-Balance Sheet Financing Transactions ”) which are not included in the Company’s consolidated financial statements that would have a current or future effect on the financial condition, changes in financial condition, result of

operations, cash flows, liquidity, capital expenditures, capital resources or significant components of the Company’s revenues or expenses.

4.11   Litigation. Except to the extent set forth in Section 4.11 of the Company Disclosure Schedule or otherwise as would not, individually or in the aggregate, have a Material Adverse Effect on the Company: (a) there is no suit, claim, action, proceeding, including, without limitation, arbitration proceeding or alternative dispute resolution proceeding, or investigation instituted or pending (and of which the Company has been notified) or, to the Knowledge of the Company, threatened against, affecting or naming as a party thereto the Company or any Company Subsidiary, or against their respective businesses or assets, and (b) there are no material outstanding judgments, orders, writs, Injunctions, awards, or decrees of any Governmental Entity or arbitrator against the Company, any Company Subsidiary, any of their respective material properties, assets, or businesses, or, to the Knowledge of the Company, any of the current or former directors or officers (in their capacities as such) of the Company or any Company Subsidiary whom the Company or any Company Subsidiary has agreed to indemnify (that would give rise to the obligation of the Company to indemnify such Person).

(a)   Section 4.12(a) of the Company Disclosure Schedule contains a true and complete list of each (collectively, the “ Plans ”): (i) deferred compensation and each incentive compensation, equity compensation plan (including each of the option Plans), “welfare” plan, fund or program within the meaning of section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), (ii) “pension” plan, fund or program (within the meaning of section 3(2) of ERISA), (iii) employment, termination or severance agreement, and (iv) other employee benefit plan or fund, and each other material employee program, agreement or arrangement; in each case, that is sponsored, maintained or contributed to or required to be contributed to by the Company or by any Company Subsidiary, for the benefit of any current employee or former employee of the Company or any Company Subsidiary.

(b)   With respect to each Plan, the Company has heretofore delivered or made available to the Parent true and complete copies of the Plan and any amendments thereto (or if the Plan is not a written Plan, a description thereof), any summary plan description, related trust or other funding vehicle, the most recent Form 5500, to the extent applicable, and the most recent determination letter received from the Internal Revenue Service with respect to each Plan intended to qualify under Section 401 of the Code. Notwithstanding the foregoing, any Plan included as an exhibit in any filing made with the SEC need not be listed on Section 4.12(a) of the Company Disclosure Schedule and need not be delivered or otherwise made available to the Parent or the Purchaser under this Section 4.12(a).

(c)   The Company does not maintain or contribute to any Plan that is subject to Title IV or Section 302 of ERISA.

(d)   Each Plan conforms in all material respects with and has been operated and administered in all material respects in compliance with its terms and applicable law, including but not limited to ERISA and the Code.

(e)   Each Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service, and to the Company’s Knowledge, there are no circumstances likely to result in revocation of any such favorable determination letter or the loss of the qualification of any such Plan under Section 401(a) of the Code.

(f)   No Plan provides material medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company or any Company Subsidiary for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable law, (ii) death benefits under any “pension plan,” or (iii) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary).

(g)   Neither the execution of this Agreement nor the consummation of the Transactions will, either alone or in combination with another event, (i) entitle any current or former employee or officer of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer.

(h)   No amounts payable (individually or collectively and whether in cash, capital stock of the Company or other property) under any of the Plans or any other contract, agreement, or arrangement with respect to which the Company or any Company Subsidiary may have any liability would fail to be deductible for federal income tax purposes pursuant to Sections 162(m) or Section 280G of the Code. To the Knowledge of the Company, there are no current challenges to such deductibility that have been asserted pursuant to Section 162(a) of the Code.

(i)   There are no pending, or, to the Knowledge of the Company, threatened or anticipated claims by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine claims for benefits).

(j)   Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole, with respect to all of the Plans which are subject to Laws other than those of the United States, (a) such Plans are in compliance with any applicable Laws, including relevant Tax Laws, and the requirements of any agreement or trust deed under which they are established, (b) all employer and employee contributions to each such Plan required by Law or by the terms of such plan have been made, or, if applicable, accrued, in accordance with normal accounting practices, and (c) the fair market value of the assets of each funded plan, the liability of each insurer for any plan funded through insurance or the book reserve established for any plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, with respect to all current and former participants in such plan.

(k)   None of the Company, any Company Subsidiary, any ERISA Affiliate, any of the Plans, any trust created thereunder, or to the Knowledge of the Company, any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which the Company, any Company Subsidiary or any ERISA Affiliate could be subject to any material liability for either a civil penalty assessed pursuant to Section 409 or Section 502(i) of ERISA or a tax imposed pursuant to Sections 4975, 4976 or 4980B of the Code.

(l)   None of the Company, any Company Subsidiary, or any ERISA Affiliate is a party to any written agreement or memorandum of understanding with the Department of Labor, or the Centers for Medicare and Medicaid Services.

(m)   To the Knowledge of the Company, no written representations or communications with respect to the participation, eligibility for benefits, vesting, benefit accrual, or coverage under any Plan have been made to employees, directors, or agents (or any of their representatives or beneficiaries) of the Company or any Company Subsidiary which are not substantially in accordance with the terms and conditions of the Plans.

(n)   The Company and each Company Subsidiary have made or properly accrued for all payments due from them to date with respect to the Plans.

(o)   No “leased employee,” as that term is defined in Section 414(n) of the Code, performs services for the Company or any ERISA Affiliate. The Company and each Company Subsidiary have at all times been in material compliance with applicable Law regarding the classification of employees and independent contractors.

4.13   Taxes. Except as set forth in Section 4.13 of the Company Disclosure Schedule:

(a)   The Company and all Company Subsidiaries (x) have timely filed (or there have been filed on their behalf) all material Tax Returns required to be filed by them, and all such Tax Returns are true, correct and complete in all material respects, and (y) have duly and timely paid in full (or there has been paid on their behalf) all material Taxes that have become due and payable, except for Taxes that are being contested in good faith and for which adequate reserves have been established in the Financial Statements in accordance with GAAP.

(b)   There are no material Liens for Taxes upon any property or assets of the Company or any Company Subsidiary, except for Liens for Taxes not yet due or for Taxes that are being contested in good faith and for which adequate reserves have been established on the Financial Statements in accordance with GAAP.

(c)   To the Knowledge of the Company, (i) no federal, state, local or foreign Audits (as hereinafter defined) are pending with regard to any Taxes or Tax Return of the Company or any Company Subsidiary, (ii) no Audit of the Company’s federal income Tax filings for the last four taxable years has been conducted by the Internal Revenue Service, and (iii) no Audit of the Company’s federal income Tax filings for the last four taxable years is threatened.

(d)   None of the Company or any Company Subsidiary has granted any request, agreement, consent or waiver to extend the statutory period of limitations applicable to the assessment of any Tax with respect to any Tax Return of the Company or any Company Subsidiary.

(e)   Neither the Company nor any Company Subsidiary is a party to any written or oral contract, agreement or arrangement providing for the allocation, indemnification, or sharing of Taxes (except for customary agreements to indemnify lenders or security holders in respect of Taxes).

(f)   Neither the Company nor any Company Subsidiary has been a member of any “affiliated group” (as defined in Section 1504(a) of the Code) other than the affiliated group of which the Company is the “parent” and no Company Subsidiary is subject to Treasury Regulation Section 1.1502-6 (or any similar provision under foreign, state, or local Law) for any period other than in connection with the affiliated group of which the Company is the “parent.”

(g)   All Taxes for which the Company or any Company Subsidiary is required by Law to withhold or to collect for payment have been duly withheld and collected, and have been paid to the proper Governmental Entity or are being withheld by the Company or such Company Subsidiary, except for such failures which are not, individually or in the aggregate, material in amount. The Company and each Company Subsidiary is in material compliance with, and its records contain all material information and documents (including properly completed Internal Revenue Service Form W-9) necessary to comply with, all material applicable information reporting, Tax withholding and backup withholding (within the meaning of Section 3406 of the Code) requirements under federal, state, and local Tax Laws.

(h)   The Company is not and has not been a “United States real property holding corporation” (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, and the shares of Common Stock are “regularly traded on an established securities market” for purposes of Section 1445(b)(6) of the Code and treasury regulation Section 1.1445-2(c)(2).

4.14   Intellectual Property.  

(a)   To the Knowledge of the Company, the Company is the sole and exclusive owner of all Patents, Copyrights, Trademarks, Internet Domain Names, Know-how (each of such terms are hereinafter defined) and all goodwill associated therewith (all of the foregoing referred to collectively herein as the “ Company Intellectual Property ”) free and clear of all Liens (other than Permitted Liens).

(i)   Section 4.14(a)(i) of the Company Disclosure Schedule sets forth a complete and accurate list of all registered and applied for United States and foreign trademarks, service marks, trade names, designs, logos, slogans and names owned by the Company and material to the Company’s business or used in conjunction with the Owned Software (as hereinafter defined) (all of the foregoing referred to collectively herein as the “ Trademarks ”).

(ii)   Section 4.14 (a)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list of all United States and foreign issued patents, patent applications, patent registrations, letters patent owned by the Company or otherwise used in conjunction with the Owned Software (all of the foregoing referred to collectively herein as the “ Patents ”).

(iii)   Section 4.14 (a)(iii) of the Company Disclosure Schedule sets forth a complete and accurate list of all United States and foreign copyright applications and copyright registrations and the moral rights owned by the Company or otherwise used in conjunction with the Owned Software (all of the foregoing referred to collectively herein as the “ Copyrights ”).

(iv)   Section 4.14(a)(iv) of the Company Disclosure Schedule sets forth a complete and accurate list of all United States and foreign Internet domain name applications and registrations owned by the Company and material to the Company’s business or otherwise used in conjunction with the Owned Software (all of the foregoing referred to collectively herein as the “ Internet Domain Names ”).

(v)   Except for those agreements identified in Section 4.14(a)(v) of the Company’s Disclosure Schedule, to the Knowledge of the Company, no technologies, trade-secrets, designs, improvements, formulae, manufacturing methods, practices, processes, technical data, product development data, research data, specifications and other methods and know-how (whether or not patentable or otherwise registerable, whether or not a secret and whether or not reduced to writing) owned by the Company and material to the Company’s business or otherwise used in conjunction with the Owned Software   (all of the foregoing referred to collectively herein as the “ Know-how ”) has been disclosed or is authorized to be disclosed to any third party other than pursuant to any agreement that limits the use or disclosure of such Know-how without the Company’s prior written consent.

(b)   With respect to the applications listed in Section 4.14(a)(i) through Section 4.14(a)(iv) of the Company Disclosure Schedule, to the Knowledge of the Company: (i) each application has been prosecuted in material compliance with all applicable rules, policies and procedures of the relevant agencies and government offices, (ii) there are no claims of prior use or other third-party claims relevant to any such application that would render any material claim thereunder unregistereable or (iii)

(c)   The Company has taken all steps that are reasonably necessary to protect, maintain and enforce the Company Intellectual Property, except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company. The Company currently is listed in the records of the appropriate federal, state or foreign agency as the sole owner of record for each application and registration relating to the Company Intellectual Property. The Company Intellectual Property listed on Section 4.14(a) of the Company Disclosure Schedule is, to the Knowledge of the Company, valid and subsisting and has not been cancelled, expired or abandoned. Except as set forth on Section 4.14(c) of the Company Disclosure Schedule, to the Knowledge of the Company, there is no pending, existing, or threatened, opposition, interference, cancellation proceeding or other legal or governmental proceeding before any court or registration authority (aside from normal prosecution proceedings not involving any third party and not involving the validity or enforceability of the Company Intellectual Property) in any jurisdiction involving any of the Company Intellectual Property.

(d)   The Company has provided in Section 4.14(d) of the Company Disclosure Schedule a true and correct list of all of the software owned or licensed by the Company, other than commercially available “off-the-shelf” software, and material to the business of the Company (the “ Company Software ”) and therein has identified which Company Software is owned, licensed, leased, or otherwise used, as the case may be. The Company Software listed on Section 4.14 (d) of the Company Disclosure Schedule is owned by the Company or used under rights granted to the Company pursuant to a written agreement, license or lease from a third party.

(i)   The use of the Company Software owned by the Company (including without limitation the source code, binary executable code, object code, compilers, assemblers and algorithms therein) (the “ Owned Software ”) does not, to the Knowledge of the Company, violate the rights of any third party. To the Knowledge of the Company, the Company is the sole and exclusive owner of and has the valid right to use, sell, license, maintain, support, upgrade and provide services for all of the material Owned Software free and clear of all Liens (other than Permitted Liens).

     (ii)   Except as set forth in Section 4.14(d)(ii) of the Company Disclosure Schedule, to the Knowledge of the Company, no source code for any Owned Software has been delivered or licensed to any escrow agent or any other Person who is not, as of the date of this Agreement, a person acting as an employee (currently or in the past) of the Company or a subcontractor or consultant of the Company. Except as set forth in Section 4.14(d)(ii) of the Company Disclosure Schedule, to the Knowledge of the Company, the Company has no duty or obligation (whether present, contingent, or otherwise) to deliver, license or make available the source code for any Owned Software to any escrow agent or other Person who is not, as of the date of this Agreement, or was not a Person acting as an employee of the Company or a subcontractor or consultant of the Company. No event has occurred, and no circumstances or conditions exist, as of the date of this Agreement, that (with or without notice or lapse of time) will, or would reasonably be expected to, result in the delivery, license, or disclosure of any source code for any Owned Software to any Person who is not as of the date of this Agreement acting as an employee of the Company or a subcontractor or consultant of the Company.

(iii)   To the Knowledge of the Company, no Owned Software is subject to any “copyleft” or other obligation or condition (including any obligation of condition under any “open source” license such as the GNU Public License, Lesser GNU Public License, or Mozilla Public License) that: (y) could require, or could condition the use or distribution of such Software on, the disclosure, licensing or distribution of any source code for any portion of such Software or (z) could otherwise

impose any limitation, restriction or condition on the right or ability of the Company to use or distribute any Company Software.

(e)   The Company has made available to the Parent copies of all written agreements (including, without limitation, covenants not to sue and settlement agreements) granting any right to use any Company Intellectual Property or Company Software in which (i) the Company or any Company Subsidiary is the licensor or licensee, (ii) annual payments required thereunder exceed $10,000, and (iii) the parties thereto continue to have any obligations, duties or liabilities thereunder (the “ Licenses ”). The Licenses are, to the Knowledge of the Company, valid and binding obligations, enforceable against each such party in accordance with their terms, there are no material breaches or defaults under any License by the Company or by any other party thereto, and there exists no event or condition which does or will result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default by the Company or any other party thereto, under any such License. The Company has not licensed or sublicensed any of its material rights in or assigned or entered into settlement agreements with respect to, any Company Intellectual Property or Company Software other than pursuant to the Licenses. Except as set forth in Section 4.14(e) of the Company Disclosure Schedule and except as would not, individually or in the aggregate have a Material Adverse Effect on the Company, no royalties, honoraria or other fees are payable, and no right or forbearance is owed, by the Company to any third parties for the use of or right to use any Company Intellectual Property or Company Software, other than as set forth the Licenses. True and complete copies of all Licenses have been made available to the Parent. Except as set forth in Section 4.14(e) of the Company Disclosure Schedule, there are no agreements granting any third party any right of exclusivity in any of the Owned Software or Company Intellectual Property.

(f)   To the Knowledge of the Company, the Company’s employees and its consultants and contractors engaged to develop Company Intellectual Property and Owned Software have signed confidentiality agreements in favor of the Company as reasonably may be necessary to protect, maintain and enforce the Company Intellectual Property and Owned Software except as would not, individually or in the aggregate, have a Material Adverse Effect on the Company.

(g)   Except as set forth in Section 4.14(g) of the Company Disclosure Schedule, the Company Intellectual Property and Owned Software were not developed under a grant from any Governmental Entity or other source.

(h)   To the Knowledge of the Company, and except as set forth in Section 4.14(h) of the Company Disclosure Schedule, the conduct of the business of the Company does not infringe upon any intellectual property of any third party and no third party is infringing upon any Company Intellectual Property or Owned Software; no such claims have been made against a third party by the Company. There are no related claims or suits pending nor threatened and the Company has not received any written notice of a third party claim or suit: (i) alleging that the Company’s activities or the conduct of its businesses infringes upon or constitutes the unauthorized use of the intellectual property of any third party or (ii) challenging the ownership, use, validity or enforceability of the Company Intellectual Property or Owned Software.

(i)   Other than the Licenses, to the Knowledge of the Company, there are no settlements, consents, judgments, Injunctions, or orders or other agreements which restrict the Company’s rights to use any Company Intellectual Property or Owned Software or which restrict the business of the Company in order to accommodate a third party’s intellectual property rights.

(j)   Except as set forth in Section 4.14(j) of the Company Disclosure Schedule, the consummation of the Transactions will not result in the loss or impairment of the Company's right to own or use any Company Intellectual Property or, to the Knowledge of the Company, the Company Software,