AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER

by and among

CAPITAL GROWTH SYSTEMS, INC.,

as Parent,

CGSI MERGERCO, INC.,

as MergerCo,

and

CENTREPATH, INC.,

as the Company

November 22, 2006

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this " Agreement ") is dated as of November 22, 2006 by and among CentrePath, Inc., a Delaware corporation (the " Company "), CAPITAL GROWTH SYSTEMS, INC., a Florida corporation (" Parent "), and CGSI MERGERCO, Inc., a Delaware corporation (" MergerCo ").

WHEREAS, the parties wish to effect a business combination through a merger (the " Merger ") of MergerCo with and into the Company on the terms and conditions set forth in this Agreement and in accordance with the Delaware General Corporation Law, as amended (the " DGCL ");

WHEREAS, the Board of Directors of the Company (the " Company Board ") has approved this Agreement, the Merger and the other transactions contemplated by this Agreement and determined that this Agreement, the Merger and the other transactions contemplated by this Agreement are advisable and in the best interest of its stockholders;

WHEREAS, the Boards of Directors of Parent and MergerCo have determined that this Agreement, the Merger and the other transactions contemplated by this Agreement are in the best interest of their respective stockholders, and Parent has approved this Agreement as the sole stockholder of MergerCo; and

NOW THEREFORE, in consideration of the mutual agreements and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Article I - THE MERGER

Section 1.1.  The Merger . Subject to the terms and conditions of this Agreement, at the Effective Time (as defined in Section 1.2 below), the Company and MergerCo shall consummate the Merger pursuant to which (a) MergerCo shall be merged with and into the Company and the separate corporate existence of MergerCo shall thereupon cease, (b) the Company shall be the surviving corporation in the Merger (the " Surviving Corporation ") and shall continue to be governed by the laws of the State of Delaware, and (c) the separate corporate existence of the Company with all its rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger. The Merger shall have the effects specified in the DGCL.

Section 1.2.  Effective Time . On the Closing Date (as defined in Section 1.4 below), MergerCo and the Company shall duly execute a certificate of merger (the " Certificate of   Merger ") and file such Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL. The Merger shall become effective at such time as the Certificate of Merger, accompanied by payment of the filing fee (as provided in the DGCL), has been examined by and received the endorsed approval of the Secretary of State of the State of Delaware (the " Effective Time ").

Section 1.3.  Certificate of incorporation and Bylaws . The certificate of incorporation of the Surviving Corporation shall be amended at the Effective Time to be identical to the certificate of incorporation of MergerCo (except for those provisions dealing with the incorporator and initial directors, which shall be omitted and the name of the Surviving Corporation which shall be as set forth in the last sentence of this Section 1.3) until thereafter amended as provided by law and the terms of such certificate of incorporation. The by-laws of MergerCo, as in effect immediately prior to the Effective Time, shall be the by-laws of the Surviving Corporation until thereafter amended as provided by law, by the terms of the certificate of incorporation of the Surviving Corporation and by the terms of such by-laws. Notwithstanding the foregoing, the name of the Surviving Corporation shall be "CentrePath, Inc." and the certificate of incorporation and by-laws of the Surviving Corporation shall so provide.

Section 1.4.  Time and Place of Closing . The closing (the " Closing ") of the Merger shall be held at the offices of Goodwin Procter LLP, Exchange Place, Boston, Massachusetts, on the earlier of (a) November 30, 2006 and (b) such other time as Parent and the Company may mutually determine. The date on which the Closing actually occurs is sometimes referred to herein as the " Closing Date ."

Section 1.5.  Directors and Officers . The directors of MergerCo immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation and the officers of MergerCo immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and by-laws of the Surviving Corporation.

Section 1.6.  Earnest Money Deposit .

(a) Parent has deposited $1,000,000 with the Company concurrently with the execution and delivery of this Agreement (the " Earnest Money Deposit ").

(b) If the transactions contemplated hereby are consummated, the Earnest Money Deposit shall be applied in payment of the Merger Consideration, and the Company shall transfer the Earnest Money Deposit to the Exchange Agent (as defined below) at the Effective Time.

(c) The Company shall return the Earnest Money Deposit to Parent if Parent terminates this Agreement pursuant to Section 9.1(c) below.

(d) The Company shall have the right to retain the Earnest Money Deposit if the transactions contemplated by this Agreement are not consummated for any reason other than those described in Section 1.6(c) above.

Article II - EFFECT OF THE MERGER ON THE CAPITAL STOCK OF  

THE CONSTITUENT CORPORATIONS  

Section 2.1.  Effect on the Capital Stock . As of the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of the capital stock of the Company (the " Company Stock ") or any shares of the capital stock of MergerCo:

(a) Each share of common stock, par value $0.01 per share, of MergerCo issued and outstanding immediately prior to the Effective Time shall be converted into one fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation following the Merger.

(b) Each share of Company Stock that is owned by the Company immediately prior to the Closing Date shall automatically be canceled and retired and shall cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange therefor.

(c) Each share of Company Stock issued and outstanding immediately prior to the Effective Time (other than shares to be canceled in accordance with Section 2.1(b) and the Dissenting Shares as defined in Section 3.2 below) shall be converted into the right to receive that portion of the Merger Consideration (as defined below) applicable to such share, calculated as of the Effective Time in accordance with the amounts set forth on Exhibit A hereto, with the amounts set forth in the column entitled "Closing Amount" to be payable as of the Effective Time and the amounts set forth in the column entitled "Escrow Amount" to be payable in accordance with the terms hereof and of the Escrow Agreement, net to the holder thereof in cash, payable to the holder thereof, without any interest thereon, upon surrender and exchange of the Certificate (as defined below) representing such share of Company Stock or the delivery of an affidavit as described in Section 3.1(h).

(i) The " Merger Consideration " shall be an amount equal to Six Million Seven Hundred Fifty Thousand Dollars ($6,750,000) plus or minus , as and if applicable, the Net Asset Position Adjustment Amount (as defined and determined in accordance with Section 2.3). As described above, the Earnest Money Deposit is deemed to be a portion of, and shall be applied in payment of, the Merger Consideration.

(ii) At the Closing, the Company shall update Exhibit A to reflect the amounts of Merger Consideration applicable to each Person who is a stockholder of the Company at the Closing, and shall deliver such updated Exhibit A to Parent with wire transfer instructions, if applicable, for each such stockholder.

(d) All shares of Company Stock, when converted as provided in Section 2.1(c), shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each certificate (" Certificate ") previously evidencing such shares shall thereafter represent only the right to receive that portion of the Merger

Consideration applicable to the shares underlying such Certificate, as set forth on Exhibit   A hereto. The holders of Certificates previously evidencing shares of Company Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to the Company Stock except as otherwise provided herein or by law and, upon the surrender of Certificates in accordance with the provisions of Section 3.1, shall only represent the right to receive the applicable Merger Consideration in exchange for their shares of Company Stock.

Section 2.2.  Company Stock Options . Any option to purchase shares of Company Stock that is outstanding immediately prior to the Effective Time shall terminate as of the Effective Time.

Section 2.3.  Adjustment to Merger Consideration .

(a) Prior to the Closing Date, the Company shall in good faith prepare, with the assistance of Parent, an estimated balance sheet of the Company as of the Closing Date (the " Estimated Closing Date Balance Sheet "), which shall include a determination of the Net Asset Position (as defined below) as of the Closing Date. The Estimated Closing Date Balance Sheet shall be prepared in accordance with GAAP consistently applied, and otherwise consistent with the methodology used to prepare the Company’s Base Balance Sheet (as defined in Section 4.5). Not later than two (2) business days prior to the Closing Date, the Company shall deliver to Parent the Estimated Closing Date Balance Sheet, together with worksheets and data that support the Estimated Closing Date Balance Sheet and any other information that Parent may reasonably request in order to verify the amounts reflected on the Estimated Closing Date Balance Sheet.

(b) As soon as practical after the Closing Date, Parent shall review the Estimated Closing Date Balance Sheet in accordance with GAAP consistently applied and otherwise consistent with the methodology used to prepare the Base Balance Sheet and make any adjustments necessary thereto, including, if necessary, to the determination of the Net Asset Position as of the Closing Date, consistent with the provisions of this Section 2.3 (the " Post-Closing Balance Sheet "). Parent shall, within twenty (20) days of the Closing Date, deliver the Post-Closing Balance Sheet to Thomas A. Giacchetto (the " Stockholders’ Representative "), together with worksheets which detail any adjustments and the basis thereof. The Post-Closing Balance Sheet, and the Net Asset Position at the Closing reflected thereon, shall be binding upon the parties upon approval of such Post-Closing Balance Sheet by the Stockholders’ Representative. If the Stockholders’ Representative does not agree with the Post-Closing Balance Sheet and the calculation of the Net Asset Position at the Closing stated thereon, and Parent and the Stockholders’ Representative cannot mutually agree on the same, then within the later of (i) thirty (30) days after the Closing Date and (ii) ten (10) days following receipt by the Stockholders’ Representative of the Post-Closing Balance Sheet, Parent and the Stockholders’ Representative shall select a nationally recognized independent accounting firm mutually satisfactory to Parent and the Stockholders’ Representative to resolve such dispute (the " Neutral Auditor "). The Neutral Auditor shall review the Post-Closing Balance Sheet and, within ten (10) days of its appointment, shall make any adjustments necessary

thereto, and, upon completion of such review, such Post-Closing Balance Sheet and the Net Asset Position at the Closing (the " Closing Net Asset Position ") as determined by the Neutral Auditor shall be binding upon the parties. If such a review is conducted, then the party (i.e., Parent, on the one hand, or the stockholders of the Company, on the other hand) whose last proposed offer for the settlement of the items in dispute, taken as a whole, was farther away from the final determination by the Neutral Auditor pursuant to the preceding sentence, shall pay all fees and expenses associated with such review (with any such stockholder obligation, if applicable, payable out of the NAP Escrow Amount (as defined in Section 3.1(a))).

(c) Within three (3) business days following determination of the Closing Net Asset Position in accordance with Section 2.3(b), (i) in the event the Closing Net Asset Position is less than zero dollars ($0), (A) up to the first $75,000 (less any amounts payable out of the NAP Escrow Amount pursuant to the last sentence of Section 2.3(b)) of the positive difference between such amounts shall be paid to Parent out of the NAP Escrow Account and (B) any portion of the positive difference between such amounts in excess of $75,000 (less any amounts payable out of the NAP Escrow Amount pursuant to the last sentence of Section 2.3(b)) shall be paid by each stockholder of the Company to Parent, based on its pro rata share (as set forth opposite such stockholder’s name in column 6 of Exhibit A attached hereto) of such portion, provided that in no event shall the stockholders of the Company be liable to or obligated to pay Parent for any amount under this Section 2.3(c), together with any amount payable to the holders of Dissenting Shares under Section 3.2(c) below, in excess of the aggregate Merger Consideration, and (ii) in the event the Closing Net Asset Position is greater than zero dollars ($0), Parent shall pay to the Exchange Agent (as defined below) the difference between such amounts, and the Exchange Agent shall distribute such amount proportionally to the stockholders of the Company based on each such stockholder’ pro rata share (as set forth opposite such stockholder’s name in column 6 of Exhibit A attached hereto). All payments under this Section 2.3(c) shall be made by wire transfer of immediately available funds or check. The difference between the Closing Net Asset Position and zero dollars ($0) is referred to herein as the " Net Asset Position Adjustment   Amount ." Subject to any Reserved Receivables (as defined in Section 2.3(d) below), that may be in the NAP Escrow Amount, on the date of payment of the Net Asset Position Adjustment Amount, if any, to the extent there remains any portion of the NAP Escrow Amount, the Escrow Agent shall distribute such remaining portion to the stockholders of the Company based on each such stockholder’ pro rata share (as set forth opposite such stockholder’s name in column 6 of Exhibit A attached hereto).

(d) As used in this Section 2.3 " Net Asset Position " means Current Assets minus Liabilities; " Current Assets " means and includes all accounts receivable, cash, cash equivalents, prepaid expenses and all other current assets of the Company, in each case as determined in accordance with GAAP, consistently applied, but does not include any accrued interest payable to the Company pursuant to certain promissory notes made by officers of the Company as of February 14, 2004 in connection with the purchase by such officers of restricted shares of the capital stock of the Company or any accounts relating to non-cash amortization of up-front setup costs relating to the Company’s remote management customers; and " Liabilities " means and includes all

accounts payable, accrued expenses, accrued but unpaid taxes, deferred revenue (only cost to fulfill deferred revenues for professional services contracts in process), indebtedness pursuant to that certain Loan and Security Agreement No. 4131, dated July 28, 2004, as amended, by and between Lighthouse Capital Partners V, L.P.

(" Lighthouse ") and the Company (the " Credit Facility "), expected lease obligations relating to the second floor of the Company’s Waltham office space pursuant to the terms of that certain lease described on Schedule 4.11(a), net of $234,000, and all other current liabilities of the Company, in each case as determined in accordance with GAAP, consistently applied, but does not include any accounts relating to non-cash amortization for that portion of the Company’s business referred to as the "GLCC Business" and up-front setup fees relating to the Company’s remote management customers, or any liability relating to the Oracle matter disclosed on Schedule 4.8 or the Master Lease Agreement with Sun MicroSystems disclosed on Schedule 4.11 . Further, in determining Current Assets, accounts receivable that have been disputed by the customer and/or are over 90 days past due shall be included in the calculation (the " Reserved Receivables "); provided, however, a reserve for the amount of such Reserved Receivables shall be established from the NAP Escrow Amount, and the escrow agent shall pay to the stockholders of the Company based on each such stockholder’ pro rata share (as set forth opposite such stockholder’s name in column 6 of Exhibit A attached hereto) an amount equal to the Reserved Receivable subsequently collected. If the Reserved Receivables are not collected within a year of the Effective Date, the escrow agent shall pay such reserve to the Surviving Company. For purposes of clarity, both the Estimated Closing Date Balance Sheet and the Post-Closing Balance Sheet shall assume completion of the transactions contemplated hereby. Additionally, for illustration purposes only, an example of the calculation of Net Asset Position is attached hereto as Exhibit B .

Article III - PAYMENT FOR SHARES; DISSENTING SHARES  

Section 3.1.  Payment for Shares of Company Stock .

(a) At the Effective Time, (i) Parent shall deposit, or shall cause to be deposited, with a bank or trust company, or one or more other Persons as shall be mutually acceptable to Parent and the Company (such Person or Persons, the " Exchange   Agent "), for the benefit of the holders of shares of Company Stock for exchange through the Exchange Agent, the aggregate Merger Consideration as provided pursuant to Section 2.1(c) less (A) the Earnest Money Deposit and (B) less the Escrow Amount (as defined below), and (ii) the Company shall deposit with the Exchange Agent, for the benefit of the holders of shares of Company Stock for exchange through the Exchange Agent, the Earnest Money Deposit (the amounts described in clauses (i) and (ii), in the aggregate, the " Exchange Fund "). At the Effective Time, Parent shall cause to be delivered to a mutually acceptable nationally recognized escrow agent (the " Escrow Agent ") an aggregate amount of cash equal to $399,000 (the " Escrow Amount "), such deposit to constitute an escrow fund (the " Escrow Fund "). The Escrow Fund shall be governed by the terms of an escrow agreement to be entered into by and among Parent, the Stockholders’ Representative and the Escrow Agent (the " Escrow Agreement "). The Escrow Fund shall be held in escrow and shall be available to satisfy certain obligations

of the Company and the stockholders of the Company as set forth in Sections 2.3, 3.2 and 6.9 of this Agreement. Each of the parties to this Agreement hereby acknowledges and agrees that (i) $30,000 of the Escrow Fund will be available solely for the payment to Parent of any Total Dissenting Share Amount due to the holders of Dissenting Shares, if any, under Section 3.2 (the " Dissenter Escrow Amount "), (ii) $75,000 of the Escrow Fund will be available solely for the payment to Parent of any amounts due to Parent, if any, under Section 2.3 (the " NAP Escrow Amount "), (iii) $60,000 of the Escrow Fund will be available solely for the payment to Parent of any Oracle Losses (as defined in Section 6.9) due to Parent, if any (the " Oracle Escrow Amount "), and (iv) $234,000 of the Escrow Fund will be available solely for the payment to Parent of any Sublease Losses (as defined in Section 6.9) due to Parent, if any (the " Sublease Escrow Amount "). No interest shall be paid or shall accrue on any amount pursuant to this Article III except as earned from the Escrow Fund itself.At or prior to the Effective Time, Parent shall cause the Exchange Agent to deliver or mail to each holder of record of a Certificate or Certificates that immediately prior to the Effective Time represented (or will represent) outstanding shares of Company Stock (i) a form of letter of transmittal reasonably acceptable to the Company which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent and (ii) instructions for use in surrendering the Certificates in exchange for the applicable Merger Consideration.

(b) Upon surrender of a Certificate for cancellation to the Exchange Agent together with such letter of transmittal, properly completed and duly executed, and such other documents as may be required pursuant to such instructions, at the Effective Time the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration as calculated in accordance with Section 2.1(c) that such holder has the right to receive in respect of the shares of Company Stock formerly represented by such Certificate, and the Certificate so surrendered shall forthwith be canceled at the Effective Time. No interest will be paid or accrued on any Merger Consideration payable to holders of Certificates.

(c) Until surrendered in accordance with this Section 3.1, each such Certificate (other than Certificates representing shares of Company Stock to be canceled in accordance with Section 2.1(b) and Dissenting Shares (as defined in Section 3.2)) shall represent solely the right to receive the Merger Consideration relating thereto. If the Merger Consideration (or any portion thereof) is to be delivered to any person other than the person in whose name the Certificate formerly representing shares of Company Stock surrendered therefor is registered, it shall be a condition to such right to receive such Merger Consideration that the Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person surrendering such shares of Company Stock shall pay to the Exchange Agent any transfer or 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 establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable.

(d) Promptly following the date that is ninety (90) days after the Effective Time, the Exchange Agent shall deliver to the Surviving Corporation all cash, 7

Certificates and other documents in its possession relating to the Merger, and the Exchange Agent’s duties shall terminate. Thereafter, each holder of a Certificate formerly representing shares of Company Stock may surrender such Certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar laws) receive in consideration therefor the Merger Consideration relating thereto.

(e) 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 Company Stock on the stock transfer books of the Surviving Corporation of any shares of Company Stock that were outstanding immediately prior to the Effective Time. On or after the Effective Time, any Certificates formerly representing shares of Company Stock presented to the Surviving Corporation or the Exchange Agent shall be surrendered and canceled in return for the payment of the Merger Consideration relating thereto, as provided in this Article III.

(f) None of Parent, the Surviving Corporation or the Exchange Agent or any of their respective subsidiaries or Affiliates 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.

(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed, the Exchange Agent will issue the applicable Merger Consideration in exchange for such lost, stolen or destroyed Certificate.

(h) Parent and the Company shall cooperate to determine the amount of Taxes (as defined in Section 4.9(b)(i)) required to be withheld with respect to any payments to be made pursuant to this Agreement that will be treated as compensation income to the recipient thereof for any relevant tax purposes, determined as if the Company was the payor of such amounts. Parent shall withhold such amounts from the portion of the Merger Consideration otherwise due to the recipient with respect to which such withholding is required, and shall instead pay such amount to the Company for payment to the applicable Tax authority. In addition, the Exchange Agent, Parent and the Surviving Corporation shall be entitled to deduct and withhold from the Merger Consideration or other amounts payable pursuant to this Agreement to any holder of shares of Company Stock such amounts as the Exchange Agent, Parent or the Surviving Corporation is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the " Code "), or any provision of United States federal, state or local tax laws. To the extent that amounts are so withheld by the Exchange Agent, Parent or the Surviving Corporation, such amounts withheld shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Stock in respect of which such deduction and withholding was made by the Exchange Agent, Parent or the Surviving Corporation.

Section 3.2.  Appraisal Rights .

(a) Notwithstanding anything in this Agreement to the contrary, any shares of Company Stock (collectively, the " Dissenting Shares ") that are issued and outstanding immediately prior to the Effective Time and that are held by stockholders of the Company who have not adopted and approved, or consented in favor of the adoption and approval, of this Agreement and who shall have demanded properly in writing appraisal for such shares in accordance with Section 262 of the DGCL (the " Appraisal   Rights Provisions ") will not be converted as described in Section 2.1, but will thereafter constitute only the right to receive payment of the fair value of such shares of Company Stock in accordance with the Appraisal Rights Provisions; provided , however , that all shares of Company Stock held by stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such shares of Company Stock under the Appraisal Rights Provisions shall thereupon be deemed to have been canceled and retired and to have been converted, as of the Effective Time, into the right to receive the applicable Merger Consideration, without interest, in the manner provided in Section 2.1. Persons who have perfected statutory rights with respect to Dissenting Shares as aforesaid will not be paid by the Surviving Corporation as provided in this Agreement and will have only such rights as are provided by the Appraisal Rights Provisions with respect to such Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, if Parent, MergerCo or the Company abandon or are finally enjoined or prevented from carrying out, or the stockholders rescind their adoption and approval of, this Agreement, the right of each holder of Dissenting Shares to receive the fair value of such Dissenting Shares in accordance with the Appraisal Rights Provisions will terminate, effective as of the time of such abandonment, injunction, prevention or rescission. Prior to the Effective Time, (i) the Company shall give Parent and MergerCo prompt notice of any demands received by the Company for the exercise of appraisal rights with respect to shares of Company Stock and Parent shall have the right to participate in all negotiations and proceedings with respect to such demands, and (ii) the Company shall not, except with the prior written consent of Parent (which consent shall not be unreasonably withheld), make any payment with respect to, or settle or offer to settle, any such demands. On and after the Effective Time, (i) Parent or the Surviving Company shall give the Stockholders’ Representative prompt notice of any demands received by Parent or the Surviving Company for the exercise of appraisal rights with respect to shares of Company Stock and the Stockholders’ Representative shall have the right to participate in all negotiations and proceedings with respect to such demands, and (ii) neither Parent nor the Surviving Company shall, except with the prior written consent of the Stockholders’ Representative (which consent shall not be unreasonably withheld), make any payment with respect to, or settle or offer to settle, any such demands.

(b) The costs incurred by the Surviving Company in connection with the exercise by holders of Dissenting Shares in accordance with the Appraisal Rights Provisions, if any (the " Appraisal Costs "), will be payable as follows: (i) up to the first $30,000 shall be paid by the Escrow Agent to the Surviving Company out of the Dissenter Escrow Amount and (ii) any remainder shall be paid by the Surviving Company. On the date that is the later of (x) twenty (20) days following notice to the stockholder of the Company of the Appraisal Rights Provisions and (y) the date on which

payment for Appraisal Costs, if any, has been satisfied, the Escrow Agent shall distribute any remaining Dissenter Escrow Amount to the stockholders of the Company based on each such stockholder’ pro rata share (as set forth opposite such stockholder’s name in column 6 of Exhibit A attached hereto).

(c) Each dissenting stockholder who becomes entitled under the DGCL to payment for Dissenting Shares shall receive payment therefor after the Effective Time (but only after the amount to be paid for such Dissenting Shares shall have been agreed upon or finally determined pursuant to the DGCL): (i) first, from the stockholders of the Company based on each such stockholder’ pro rata share (as set forth opposite such stockholder’s name in column 6 of Exhibit A attached hereto) of the aggregate amount to be paid for such Dissenting Shares pursuant to the DGCL, provided that in no event shall the stockholders of the Company be liable to or obligated to pay any amount to the holders of Dissenting Shares under this Section 3.2(c), together with any amounts payable to Parent under Section 2.3(c), in excess of the aggregate Merger Consideration, and (ii) thereafter, from the Surviving Company; and such shares of Company Stock shall thereupon be canceled.

Article IV - REPRESENTATIONS AND WARRANTIES OF THE   COMPANY  

The Company hereby makes to Parent and MergerCo the representations and warranties contained in this Article IV.

Section 4.1.  Existence; Good Standing; Authority .

(a) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to own, operate, lease and encumber its properties and carry on its business as currently conducted. The Company is duly licensed or qualified to do business as a foreign corporation under the laws of each other jurisdiction in which the character of its properties or in which the transaction of its business makes such qualification necessary, except where the failure to be so licensed or qualified would not, individually or in the aggregate, have a Material Adverse Effect. The copies of the Company’s Sixth Amended and Restated Certificate of Incorporation as in effect on the date hereof (the " Charter ") and by-laws, each as amended to date and made available to Parent’s counsel, are complete and correct, and no amendments thereto are pending.

(b) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement, the performance by the Company of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by Parent, this Agreement

constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles.

Section 4.2.  Capitalization . As of the date of this Agreement, the authorized, issued and outstanding capital stock of the Company is set forth on Schedule 4.2 . All of the issued and outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable. As of the date of this Agreement, except as set forth on Schedule 4.2 , there are no outstanding options, warrants or other rights of any kind to acquire any additional shares of capital stock of the Company or securities convertible into or exchangeable for, or which otherwise confer on the holder thereof any right to acquire, any such additional shares, nor is the Company committed to issue any such option, warrant, right or security. Except as set forth on Schedule 4.2 , there are no agreements or understandings to which the Company is a party with respect to the voting of any shares of capital stock of the Company or which restrict the transfer of any such shares. Except as set forth on Schedule 4.2 , there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of capital stock, other equity interests or any other securities of the Company. Except as set forth on Schedule 4.2 , the Company is not under any obligation by reason of any agreement to register the offer and sale or resale of any of its securities under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the " Securities Act ").

Section 4.3.  Subsidiaries . The Company has no subsidiaries, and does not own any interest or investment (whether equity or debt) in any Person (other than investments in short-term investment securities).

Section 4.4.  No Conflict . Neither the execution and delivery by the Company of this Agreement and the other agreements, documents and instruments contemplated hereby to which the Company is a party, nor the consummation by the Company of the transactions in accordance with the terms hereof and thereof, conflicts with or results in a breach of any provisions of the Charter or by-laws of the Company. Except as set forth on Schedule 4.4 , and assuming the consents, approvals and authorizations contemplated by Section 4.7 are obtained, the execution and delivery by the Company of this Agreement and the other agreements, documents and instruments contemplated hereby to which the Company is a party and the consummation by the Company of the transactions in accordance with the terms hereof and thereof will not violate, or conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under any of the terms, conditions or provisions of any material note, bond, mortgage, indenture, deed of trust, lease, contract or other agreement to which the Company is a party or by which the or any of its properties is bound, except, in each case, as would not, individually or in the aggregate, have a Material Adverse Effect or would become applicable as a result of the business or activities in which Parent proposes to be engaged or as a result of any acts or omissions by, or the status of any facts pertaining to, Parent.

Section 4.5.  Financial Statements .

(a) The Company has delivered to Parent the following financial statements, copies of which are attached hereto as Schedule 4.5 (collectively, the " Financial Statements "):

(i) Audited balance sheet of the as of December 31, 2005, and statements of income and retained earnings and statements of cash flows the year then ended;

(ii) Unaudited adjusted balance sheet of the as of September 30, 2006 (the " Base Balance Sheet "); and

(iii)Unaudited adjusted statements of income of the Company as of September 30, 2006.

Subject to the absence of footnotes and year-end audit adjustments with respect to any unaudited Financial Statements, the Financial Statements have been prepared using the Company’s past practices and procedures in accordance with GAAP consistently applied, and present fairly in all material respects the consolidated financial condition of the Company.

(b) As of the date hereof, all liabilities of the Company of a type that would be required to be shown on the Financial Statements in accordance with GAAP have been (i) stated or adequately reserved against on the Base Balance Sheet or the notes thereto, (ii) reflected on Schedule 4.5 or the other Schedules furnished to Parent hereunder, or (iii) incurred after the date of the Base Balance Sheet in the ordinary course of business consistent with past practices, except for liabilities which are not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect.

Section 4.6.  Absence of Certain Changes . Except as set forth on Schedule 4.6 , from the date of the Base Balance Sheet to the date of this Agreement, the Company has operated only in the ordinary course of business consistent with past practices and there has not been any:

(a) change in the Company’s authorized or issued capital stock; grant of any option, right to purchase or similar right regarding the capital stock of the Company; purchase, redemption, retirement, or other acquisition by the Company of any such capital stock; or declaration or payment of any dividend or other distribution or payment in respect of the capital stock of the Company;

(b)  amendment to the Charter or by-laws of the Company;

(c)  payment of any bonuses, or material increase in salaries or othercompensation, by the Company to any of their respective directors, officers, or employees, except for bonus awards and increases in salaries made in the ordinary course of business consistent with past practices;

(d) damage to or destruction or loss of any asset or property of the Company, whether or not covered by insurance, which has had a Material Adverse Effect;

(e) incurrence of indebtedness or guarantee of debt or other liability of any third party by the Company other than in the ordinary course of business;

(f) material change in the accounting methods or principles used by the Company, other than (A) write-downs or write-offs in the value of assets as required by GAAP, or (B) such adjustments as may be required by GAAP as a result of the transactions contemplated by this Agreement; or

(g) entering into any written agreement to do any of the actions described in clauses (a) through (f).

Section 4.7.  Consents and Approvals .

(a) To the Company’s knowledge, except as set forth on Schedule   4.7(a) , the execution, delivery and performance of this Agreement by the Company will not, as of the Closing Date, require any consent, approval, authorization or other action by, or filing with or notification to, any federal, state, local, or any foreign government, governmental, regulatory or administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body (a " Governmental Authority "), except (i) where failure to obtain such consent, approval, authorization or action, or to make such filing or notification, would not, individually or in the aggregate, have (A) a Material Adverse Effect or (B) a material adverse effect on the ability of the Company to perform its obligations under this Agreement, and (ii) as may be necessary as a result of any facts or circumstances relating solely to Parent (including, without limitation, its sources of financing).

(b) To the Company’s knowledge, except as set forth on Schedule   4.7(b) , the execution, delivery and performance of this Agreement by the Company will not, as of the Closing Date, require any third-party consents, approvals, authorizations or actions, except where failure to obtain such consents, approvals, authorizations or actions would not, individually or in the aggregate, have (i) a Material Adverse Effect or (ii) a material adverse effect on the ability of the Company to perform its obligations under this Agreement.

Section 4.8.  Litigation . Except as set forth on Schedule 4.8 , as of the date of this Agreement there is no litigation, action, suit, proceeding, claim, arbitration or investigation pending or, to the Company’s knowledge, threatened in writing against the Company, as to which there is a reasonable likelihood of an adverse determination and which, if adversely determined, individually or in the aggregate, with all such other litigation, actions, suits, proceedings, claims, arbitrations or investigations, would have a Material Adverse Effect.

Section 4.9.  Taxes .  

(a) Except as set forth on Schedule 4.9 or as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:

(i) The Company has timely filed or been included in, or will timely file or be included in, all material Tax Returns required to be filed by it or in which it is to be included with respect to Taxes for any period ending on or before the date of this Agreement, taking into account any extension of time to file granted to or obtained on behalf of the Company;

(ii) The Company has paid or caused to be paid all Taxes shown on such Tax Returns prior to the date of this Agreement and has made provision, in accordance with GAAP, for all Taxes owed or accrued through the date of this Agreement;

(iii)Neither the Internal Revenue Service (the " IRS ") nor any other Governmental Authority is asserting as of the date of this Agreement by written notice to the Company or, to the Company’s knowledge, threatening as of the date of this Agreement to assert against the Company, any deficiency or claim for any material amount of additional Taxes; and

(iv)To the Company’s knowledge, no federal, state, local or foreign audits or other administrative proceedings or court proceedings are pending as of the date of this Agreement with regard to any Taxes or Tax Returns of the Company and the Company has not received a written notice prior to the date of this Agreement of any actual or threatened audits or proceedings or is otherwise aware of an